Canadian Employment Law Today

CANADIAN EMPLOYMENT LAW TODAY CASE IN POINT: EMPLOYMENT STANDARDS Court didn't address consideration or compliance Continued from page 4 positive performance review in November 2010, but in March of 2011, stopped attending work due to a back ailment. At that time, she proposed a gradual return to work, based on the advice of her doctor. Solis considered the return to work proposal but deemed it unacceptable. Instead, Solis indicated that it would not allow her to return to work unless she was capable of performing full time hours. Wilson's doctor provided a completed Functional Abilities Form, which suggested that she could return to work on a full-time basis in April if she was accommodated by being allowed to sit, stand and walk for periods of time at the workplace. Solis considered the return to work proposal but deemed it unacceptable. Instead, Solis indicated that it would not allow her to return to work unless she was capable of performing full time hours. Wilson's doctor provided a completed Functional Abilities Form, which suggested that she could return to work on a full-time basis in April if she was accommodated by being allowed to sit, stand and walk for periods of time at work. Solis, rather than accommodating Wilson, insisted on there being a "complete recovery" before it would allow her to return to work. Solis then required Wilson to fill out a second Functional Abilities Form in May, during the time in which it was considering the sale of its New Orleans Pizza division. Ultimately, Wilson's employment was terminated in May when Solis notified her that her position was "redundant" and there were no "comparable positions." Perhaps not surprisingly, the court found the reasons given for termination of Wilson's employment were hallow and unsubstantiated. It ruled that Wilson's employment had been terminated in whole or in part because of her disability. The court also found the requirement to fill out a second Functional Abilities Form was "disingenuous" and Wilson was "given the runaround" due to the delay in allowing her to return to work while Solis was considering a sale. Further, the court found no accommodation was offered or, seemingly, even considered. Despite no oral evidence being led by either party, the court determined the Employee's statement that she was "shocked, dismayed and angered" by a pre-termination letter provided evidence of the loss relating to feelings, dignity and self-respect. Section 46.1 of the code reads: "If, in a civil proceeding in a court, the court finds that a party…has infringed a right under Part I of another party…, the court may make…: 1. An order directing the party who infringed…to pay monetary compensation to a party whose right was infringed for loss arising out of the infringement including compensation for injury to dignity, feelings and self-respect." It is clear courts and tribunals will not excuse an employer for not implementing a proper process when considering accommodation as it relates to a disability and return to work. Citing Human Rights Tribunal case law, the court also noted that damages should also be awarded to compensate for the loss of being free from discrimination and the experience of victimization. In holding that Solis orchestrated the dismissal and was disingenuous at various times prior to and proceeding termination, the court held that Wilson was entitled to $20,000 in damages under the code. Solis was also ordered to pay Wilson three months for reasonable notice for the wrongful dismissal claim. Clearly, to an objective observer, these were not facts which supported a view of a compassionate employer, or even one who considered the long-term impact of a decision to insist on a return to full hours. And while it may have been considering a pending sale, it is clear that courts and tribunals will not excuse an employer for not implementing a proper process when considering accommodation as it relates to a disability and return to work. What is interesting about this case is the court's willingness to award damages under the code, particularly those designed to compensate for injury to dignity, feelings and self-respect. This willingness may provide employees with a more effective process and remedy where there are allegations against an employer of a breach of the code. For more information see: •Musoni v. Logitek Technology Ltd., 2013 CarswellOnt 14149 (Ont. C.A.). •Wilson v. Solis Mexican Foods Inc., 2013 CarswellOnt 13851 (Ont. S.C.J.). About the Author Lorenzo Lisi Lorenzo Lisi practises employment and labour law with Aird & Berlis LLP in Toronto. Aird & Berlis can be reached at (416) 863-1500 or www.airdberlis.com. Lorenzo would like to thank Fiona Brown and Meghan Cowan for their assistance in preparation of this article. WEBINARS Interested in learning more about employment law issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as reinstatement conditions, managerial duties and overtime, employee mitigation of damages and constructive dismissal. To view the webinar catalogue, visit cpdcentre.ca/hrreporter. Published by Canadian HR Reporter, a Thomson Reuters business 2014 5

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