Canadian Employment Law Today

January 8, 2014 $20,000 in damages for 'victimization' Continued from page 1 allowing her to return — failing to offer or even consider accommodation. Furthermore, the court didn't believe Wilson was terminated due to restructuring. Describing Solis' position as "contrary to the evidence" and defying "common sense," the court found Solis used the sale of one of its divisions as an excuse to terminate Wilson. She was awarded $20,000 in damages. In calculating this award, the court considered the fact Wilson lost "the right to be free from discrimination" and experienced "victimization." Furthermore, the breach was serious and the employer had been disingenuous towards Wilson both before and during her termination. Tips for employers This case has important takeaways for employers and HR professionals including: •Employers have a duty to accommodate. The employer was faulted for demanding a full recovery before it would allow a return to work. Employers have a duty to accommodate disabled employees and modify positions up to the point of undue hardship and generally cannot demand a full recovery before allowing an employee to return to work. •Temporary illnesses are protected under the Human Rights Code. In this case the employee did not have a "disability" in the traditional sense, but reoccurring back pain. The court noted Wilson's back pain constituted a disability under the code. As such, employers should be aware that a temporary injury such as back pain should not factor into a decision to terminate an employee. •This case may open the floodgates. While some employees have been including human rights claims as part of wrongful dismissal actions since 2008, now that there has been a reported decision in which a court has awarded damages under the code, it will likely encourage more employees to do the same. While the awards in the two cases decided under thus far have been monetary, there remains the potential for a court to award other remedies, such as reinstatement, which have traditionally not been available in civil actions. Employee felt embarrassed Continued from page 3 felt was unfair since other dock supervisors weren't held accountable. Morgan was told — in what he claimed was an aggressive manner — to eliminate the errors and he felt he was being singled out. On more than one occasion, Morgan emailed management to address the errors of which he had been accused and explain his side of things, but received no response. In June 2010, Morgan injured his ankle on the dock. He continued to work, but after a couple of days he was told by his doctor to take some time off work. When he returned a week later, management told him there was no evidence of his injury on the surveillance video. One manager was angry and told Morgan they would fight the workers' compensation claim. Skill and personality test Later that month, Morgan underwent skill and personality testing. When the results came in, management told him he did not meet the requirements to work in the fast-paced environment of 6 the dock supervisor position. Morgan was flabbergasted, since he had done the job for 24 years. He also felt he had been set up because the volume of freight had increased while his staff had decreased. In September 2010, Morgan was told his performance was unsatisfactory and he wasn't suited for his job. A new position — freight analyst — with the same salary was created for him but there was little supervisory responsibility. Morgan felt embarrassed about the change and felt it was a demotion. He decided he couldn't return to work for Vitran as he would be humiliated, having to face the workers he had trained. Morgan sued for constructive dismissal. The court found Morgan did fine as a dock supervisor for many years before any problems were brought to his attention. Also, though he had to take responsibility for the workers under his supervision, many of the errors were routine and happened during other shifts as well. And, notably, the errors were not brought to Morgan's attention at the time they happened and he wasn't given any indication of performance issues until 2006. This seemed to indicate he was tar- FOR MORE INFORMATION SEE: •Wilson v. Solis Mexican Foods Inc., 2013 CarswellOnt 13851 (Ont. S.C.J.). •Berkhout v. 2138316 Ontario Inc. (March 2013), (Ont. Small Claims Ct.). About the Author Justin Tetreault Justin Tetreault is an associate with Grosman, Grosman & Gale LLP in Toronto. He represents both employers and employees in all aspects of labour, employment, and human resources law with a particular focus on wrongful dismissal litigation. He can be reached at jtetreault@grosman.com. geted at a certain point in time, said the court. The court found the way Morgan was treated in the meetings and when he made the workers' compensation claim was "disrespectful and unwarranted." Morgan tried to act respectfully and discuss the issues with management, but he was either ignored or faced aggression, said the court. The court also found the vagueness with which his job abilities were assessed and what he could do to meet expectations was unfair, as was Vitran's inability to explain why he was unsuited for a job he had done for 24 years. The corrective action plan was "doomed to failure in the absence of meaningful feedback" and the alternate position further contributed to a fundamental breach of the employment contract, said the court. Vitran was ordered to pay Morgan 18 months' notice for constructive dismissal, for a total of $80,911.88. The court denied his claim for moral damages, finding his treatment by Vitran was "unfair and unacceptable" but not "nasty and mean-spirited." FOR MORE INFORMATION SEE: • Morgan v. Vitran Express Canada Inc., 2013 CarswellOnt 1591 (Ont. S.C.J.). Published by Canadian HR Reporter, a Thomson Reuters business 2014

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