Canadian Employment Law Today

March 5, 2014

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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CURRENT NEWS AND PRACTICAL ADVICE FOR EMPLOYERS MARCH 5, 2014 In This Issue PM40065782 CURRENT NEWS AND PRACTICAL ADVICE FOR EMPLOYERS 3 4 9 2 ASK AN EXPERT: Successive fi xed-term contracts • Off-duty misconduct CASES AND TRENDS: Harassment complaint can't face reprisal: Labour board CASE IN POINT: Muslim workers forced to eat pork, break Ramadan fast CASES AND TRENDS: Addiction still a disability months after termination Worker on modifi ed duty fi red, reinstated after surveillance of activities Injured employee's reckless behaviour outside of work was reckless, not dishonest: Arbitrator | BY JEFFREY R. SMITH | AN INJURED Ontario worker who was dismissed for dishonesty after being observed performing activities beyond his stated medical restrictions outside of work has been reinstated. Rick Adamo, 39, was a shipper/load- er for Energex Tube, a manufacturer of steel tubes and pipes for oil and gas pipelines in Welland, Ont. He began his employment with Energex in 2001 and in 2006 he began experiencing prob- lems with his lower back. Over the next few years, Adamo fi led fi ve claims with Ontario's Workplace Safety and Insurance Board (WSIB) relat- ing to back injuries he sustained at work that kept him from working for a period of time. On Feb. 13, 2013, Adamo hurt his back while moving a piece of lumber at work. He left a voice message in- forming his supervisor about it, though he didn't complete an accident report, which he had done for his previous in- juries and was required practice. Adamo was told to stay off work for one week and a medical note saying as much was sent to Energex. More doc- tor visits followed over the next few weeks and Adamo wasn't ready to come back. Eventually, he was able to return to work one month after the injury with modifi ed duties. When Adamo returned, his doctor completed a functional abilities form (FAF) which restricted him to walk- ing no more than 100 metres at a time, standing for no more than 15 to 30 min- utes, sitting for no more than 15 min- utes, no lifting, no ladder climbing, no bending or twisting and no pushing or pulling. These restrictions were initially intended to apply for two weeks. As for whether Adamo could push these limi- tations if he began feeling better, the doctor advised him to "let pain be his guide." When Adamo met with his supervi- sors to discuss his return to work, he said he would do whatever work they wanted him to do as long as it complied with the restrictions listed by his doc- tor on the FAF. He was assigned miscel- laneous tasks taken from various other employees' work pulled together into one job. In late March, the doctor completed a new FAF, which con- fi rmed the same re- strictions should apply for another two weeks. Another FAF in mid- April maintained the status quo. Around the same time, Adamo spoke with a low back expert physician re- ferred to him by the WSIB, who deter- mined he didn't need surgery. The low back expert told the WSIB Adamo no longer had any restrictions for climbing stairs, but Adamo's doctor disagreed. Adamo continued to work under the medical restrictions estab- lished by his doctor, though over time he increased his duties to exceed some of the restrictions, following his doctor's advice to let pain determine how much he could do. Company began surveillance of employee Energex became suspicious of the ex- tent of Adamo's injury while he was off work and hired a private investigator to Continued on page 7 Continued on page 11 Assisting another employer doesn't create duty to report accident B.C. HYDRO was not required to report an accident that injured a contractor working on its power lines, an arbitra- tor has ruled, even though company em- ployees rushed to the scene to help the injured man. In the fall of 2009, B.C. Hydro granted a contract to replace components of its overhead electrical distribution system near Fernie, B.C., to Arrow, a power line construction and maintenance fi rm. As the prime independent contractor, Ar- row was responsible for the protection and safety of all workers performing the work. There were no B.C. Hydro work- ers on the project. On Nov. 26, 2009, an Arrow power line technician came into contact with an energized part of the electrical dis- tribution system and suffered electrical burns. A co-worker tried to call for as- sistance on his cellphone but was un- successful, so he used his radio. A B.C. Hydro crew was in the area and heard the radio call. They rushed to the scene and rescued the Arrow worker, who was rushed to hospital. B.C. Hydro employees stayed to re- store electrical service and began to in- vestigate it. B.C. Hydro's line manager went to the hospital to give materials on how to treat electrical injuries to doc- tors and then went to the accident site, where he reminded an Arrow employee The employee said he would do whatever work they wanted him to do as long as it complied with his medical restrictions.

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