Canadian Employment Law Today

December 11, 2013

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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CANADIAN EMPLOYMENT LAW TODAY MORE CASES COMPILED BY JEFFREY R. SMITH Continued from page 1 in Southern Ontario. The schedule for Sept. 15 had not yet been set, and so Mazzuca returned to Harris a few days before the shift to ask again. Harris denied the request as the plant was scheduled to run at full capacity that day. On Sept. 17, Harris arrived at work to find Mazzuca had been absent for his Sept. 15 shift. Tim Stevenson, the shift co-ordinator working that day, testified Mazzuca said he had permission from Harris to miss his shift. The plant's timekeeping system, which records when employees swipe in and out of the plant, indicated Mazzuca did not swipe in on Sept. 15. Mazzuca's version of events is significantly different. When he was questioned about his absences by the company on Sept. 21, he said Stevenson granted him time off. In his testimony during arbitration Mazzuca said he was at work for his evening shift, but became sick and had to go home. He said his swipe card did not work because of maintenance on the company's computer system. Mazzuca also claimed Stevenson was "a liar" for claiming to be the shift co-ordinator that evening. He said Alan Amaroso was the co-ordinator he reported to before going home sick. The shift report indicated Amaroso was done working when Stevenson swiped in for his 6 p.m. shift on the evening in question. Illness-related delays Following Sept. 15, Mazzuca's next scheduled shift was Sept. 20. The night before his shift Mazzuca called the company's shift supervisor, Lisa Mason, to inform her his interview had gone well, but he had been in a car accident. Mazzuca reportedly told Mason he was not injured and was trying to book a flight out of Toronto to be back in Sault Ste. Marie in time for his morning shift. Mazzuca did not report for work on Sept. 20. Asked what he did that day, Mazzuca testified he was "stressed" and slept all day. He testified he left Toronto at 6 p.m. on Sept. 19 in a rental truck, as his vehicle sustained damage in the accident. The rental was mechanically defective and could only travel at a speed well below the limit. He testified he was ill and had to make frequent stops before spending the night in a hotel. Mazzuca was back on the road at 11 a.m. on Sept. 20 and continued to feel ill, making frequent stops until he returned to Sault Ste. Marie at 3 a.m. on Sept. 21. It took him 29 hours to complete a trip that, under normal circumstances, takes no more than nine hours. Essar Steel's HR representatives found Mazzuca's Sept. 15 appointment was informal and, contrary to what he had told his supervisor when he requested time off, Mazzuca did not have a scheduled job interview. The company found Mazzuca misrepresented the reason for wanting to be excused from his Sept. 15 shift and he could have made greater efforts to return for his Sept. 20 shift. The union was unable to provide the company with information on Mazzuca's reason for absence on Sept. 15, but submitted the company was putting too much weight on Mazzuca's actions between Sept. 17 and Sept. 21, when he was off-duty. Arbitrator William A. Marcotte found Mazzuca's version of events "defies all logic in light of the evidence from the company's witnesses and records." Additionally, Marcotte found Mazzuca's explanation that he went to work but left due to illness to be inconsistent with his previous claim that Stevenson granted him time off. The arbitrator found Mazzuca misled Stevenson to believe he had been granted time off by a supervisor. Regarding the Sept. 20 absence, Marcotte ruled Mazzuca left Toronto in time for his shift but was unable to attend work due to illness-related delays. The circumstances surrounding the Sept. 15 absence, however, were enough for the arbitrator to rule Mazzuca was rightfully dismissed under provisions of his Last Chance Agreement. The grievance was dismissed. See Essar Steel and the United Steelworkers of America (USW) Local 2251 (Nov. 5, 2013),William A. Marcotte — Arb. Employee dismissed because of return-to-work request, not sick leave An Ontario employer wrongfully dismissed an employee who wanted to return to work after several months of sick leave, an adjudicator has ruled. Dinesh Sharma worked as an office clerk for Beacon Transit Lines, a regional carrier of fresh, frozen and dry goods based in Brampton, Ont. She was hired in October 2001 and worked until October 2012, when Sharma informed Beacon that she would be taking time off to heal an injured arm that had been bothering her for two years. She indicated she would be receiving workers' compensation benefits, though she didn't submit a claim until the day after. A week later, on Oct. 31, she submitted a form to Beacon that was required as part of her workers' compensation claim. On Nov. 8, 2012, Ontario's Worker Safety and Insurance Board (WSIB) determined Sharma's injury wasn't workrelated and rejected her claim. Beacon had told the WSIB it was not aware the injury happened in the course of her employment, just that she had said she had pain in her arm. Beacon didn't receive any further communication from Sharma until December, when she asked for a record of employment (ROE) so she could apply for employment insurance benefits. The company issued an ROE indicating Sharma's expected date of recall as "unknown." It continued to pay her health benefits during her leave. Over the next few months, Sharma consulted a specialist, underwent elbow surgery and received physiotherapy. On March 6, 2013, she contacted Beacon to say she was able to return to work on March 11. She also provided a doctor's note proclaiming her fit to work. However, the company informed Sharma it couldn't reinstate her due to a lack of work — it claimed it had lost a major account during Sharma's absence and its operations were affected. An ROE was issued indicating she couldn't return due to a shortage of work. Beacon felt it didn't need to pay Sharma any severance pay because she had been absent from work for 19 weeks. Acccording to the Canada Labour Code, an employee could not be dismissed if on sick leave for less than 17 weeks. The adjudicator found Beacon had an obligation to establish there was a lack of work that prevented Sharma from returning, but it didn't provide any evidence that it lost a major account or didn't have a position for Sharma. In addition, the adjudicator pointed out that although the code allowed for dismissal after 17 weeks, Sharma wasn't let go because of her sick leave length — she was dismissed because she asked to return to work, said the adjudicator. "When that request was made she was told there was no work available and an ROE was issued the same day citing a shortage of work," said the adjudicator. "The only logical conclusion is Sharma wanted to return to work and the employer did not want her back." The adjudicator found Beacon didn't have just cause for dismissal and ordered the company to pay five weeks' pay in lieu of notice, as required under the code. See Sharma and Beacon Transit Lines Inc., Re, 2013 CarswellNat 4148 (Can. Arb.). Published by Canadian HR Reporter, a Thomson Reuters business 2013 11

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