Canadian Employment Law Today

CANADIAN EMPLOYMENT LAW TODAY MORE CASES COMPILED BY JEFFREY R. SMITH Continued from page 1 er told her she should take a leave of absence "due to stress" rather than quit, while the other thought she said she did quit. Neither co-worker was Rita's superior or had any role in the termination process. As it was near the end of the workday, Rita packed up her belongings and performed her regular closing duties after the other employees left — duties which included locking the office, putting cash in the safe and transferring the phone to an answering service. The next day, Rita emailed one of her co-workers with a request to give an attached doctor's note to Joe. The doctor's note indicated Rita was absent from work due to medical reasons and would be assessed on March 27. The note also stated she would drop off her keys and company cellphone the next day. After her assessment on March 27, Rita's doctor provided a medical certificate that stated she was on a "stress related medical leave." Rita then applied for employment insurance benefits. Joe assumed Rita had quit her job and Oomen's Glass issued her a record of employment with the comment that Rita was told she wouldn't be coming back to work due to "personal problems causing errors in her work." Rita filed a claim for termination pay with the Ontario Employment Standards Branch, claiming Oomen's Glass had terminated her employment. An employment standards officer agreed with her and ordered the company to pay her $3.149.22 in termination and vacation pay. Oomen's Glass appealed to the Ontario Labour Relations Board, claiming Rita Oomen had quit, thereby terminating the employment relationship and making her ineligible for termination pay. The board noted there were two things to be considered when determining if an employee has quit: a subjective intent to quit and if the employee's actions manifested that intent. The board found that regardless of whether she told her co-workers she was going to quit, there was no dispute that she never told Joe Oomen — her actual boss — that she quit. Her state of mind immediately following the argument on the phone was likely emotional and not clear-thinking, nor was it a communication to the employer of her intent to quit, said the board. The board also found Rita's actions indicated her intent to continue the employment relationship. She continued to work and completed her regular closing duties that day. She also sent a medical note for a leave of absence the next day, which indicated she wanted to remain an employee. "In addition to performing her regular closing duties (which suggests that she intended to continue with her duties after her statements to her co-workers), the medical note provided the following day indicates an intention for a leave of absence," said the board. "This suggests that she was not trying to sever the employment relationship." The board also determined that Rita's return of her keys and cellphone indicated she didn't want to keep company property while on a leave of absence rather than a belief she had quit. The board agreed with the original ruling that Oomen's Glass terminated the employment relationship and upheld the order to pay Rita Oomen termination pay. See M. Oomen's Glass Ltd. v. Oomen, 2013 CarswellOnt 17083 (Ont. Lab. Rel. Bd.). Bus driver's injuries not from driving a bus THE ONTARIO WORKPLACE Safety and Insurance Board (WSIB) has denied a bus driver's claim for benefits for back and knee pain, which the driver claimed was the result of his bus driving duties. The driver began his employment driving a city bus in January 2002. Over the years, he worked a significant amount of overtime in addition to his regular hours. In 2008, he began feeling a jabbing pain in his lower back, numbness in his legs and pain in his right knee. The driver felt these injuries were the result of the countless hours he spent sitting in the same position while driving, along with the repeated pressure and vibration from using the gas and brake pedals. His knee pain, the driver believed, was the result of constantly hitting his knee on the fare box in the bus. The driver indicated he always drove an older model of bus that had bad shocks, especially when the bus was full. In addition, part of his route featured road construction which caused a ride that was more bumpy than usual, exacerbating the vibration problem. The worker had no previous pain, so when his doctor checked him out he became aware his problems were likely related to years of driving a bus. The driver's knee injury was diag- nosed as a medial meniscus tear and he had surgery in January 2009. The driver considered his injuries to be a disability that developed from his work and filed a claim for worker's compensation benefits. The WSIB case manager assigned to the driver's case didn't accept that the driver's impairments were causally related to his bus driving duties. The driver's employer put him on short-term disability (STD) benefits with the intent to have him return to work, since his claim was denied. The driver appealed to the Workplace Safety and Insurance Appeals Tribunal (WSIAT). The WSIAT agreed with the WSIB, finding there wasn't sufficient evidence to demonstrate the driver's injuries were a direct result of his job duties. The tribunal found the sudden onset of pain in 2008, while there was no prior ailment, made it suspect that the driver's pain was the result of gradual progression of injury over time. He also didn't seem to think the injuries were caused by his job until he saw a doctor, said the tribunal. The WSIAT also found the city buses underwent "rigorous inspection carried out by both maintenance staff and drivers" and the road construct was minor. In addition, the driver's route featured an extra loop at one end that allowed for frequent breaks during which the driver could get up and move around. Also of note, the driver's condition continued to worsen after he stopped driving a bus in 2008. The medical evidence included x-rays and an MRI which showed disc protrusion in his back, but no neurological damage. In addition, the torn meniscus in his knee wasn't consistent with the supposed cause of driving or bumping the knee on the fare box, said the tribunal. "Bulging or protruding discs are common in the general public associated with the natural process of degenerative changes," said the tribunal. "These changes occur regardless of trauma or injury." The tribunal determined the driver had "a spontaneous flare-up of pain" from his condition but it wasn't causally connected to his job. The driver's injuries did not arise from his employment, but rather were the result of a "degenerative condition which is disabiling in and of itself rather than evidence of a causation relationship between the work and the disability." This finding was supported by the fact the driver's injuries continued to deteriorate after he stopping driving buses and went on disability leave. See Ontario Workplace Safety and Appeals Tribunal Decision No. 1168/13, 2013 CarswellOnt 15795 (Ont. W.S.I.A.T.). Published by Canadian HR Reporter, a Thomson Reuters business 2014 7

• Cover