Canadian Employment Law Today

March 19

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 19, 2014 In This Issue PM40065782 CURRENT NEWS AND PRACTICAL ADVICE FOR EMPLOYERS 3 4 8 2 ASK AN EXPERT Employee harassing co-worker or customer outside of work CASES AND TRENDS Employee travel risk management CASE IN POINT Knife-wielding corrections offi cer fi red — but not for long YOU MAKE THE CALL Sawmill worker felled for excessive absenteeism No duty to accommodate if employee can't work McDonald's worker claimed employer didn't participate in return-to-work efforts | BY JEFFREY R. SMITH | AN ONTARIO McDonald's employee had her employment terminated not because of discrimination from a back injury- related disability but rather because the employer simply couldn't fi nd work for her, the Ontario Human Rights Tribunal has ruled. Cathy Gahagan worked at the grill sta- tion of a McDonald's in Lakefi eld, Ont., for seven years. Her duties involved as- sembling burgers, wrapping them and taking them to the front of the restau- rant for customers — a key position in the fast-paced kitchen. In May 2009, Gahagan twisted her back while lifting a fi lter pan from un- derneath the french fries vat. The injury caused her to miss work and she was granted full loss-of- earning benefi ts by the Ontario's Workplace Safety and Insurance Board (WSIB). On Sept. 8, 2009, Ga- hagan's physiothera- pist informed the WSIB she was beginning an occupational re- habilitation program that would last for eight weeks. For the fi rst fi ve weeks, she would remain off work and for the rest of the program she could return to work gradually. No point in trying to accommodate if she can't do her job: Employer Two months later, on Nov. 10, a WSIB return-to-work specialist, accompanied by Gahagan's physiotherapist, went to the McDonald's restaurant where Gaha- gan was employed to evaluate the work- place and see whether she could return to work. They informed the co-owner Gahagan had the following restrictions: • no lifting more than 10 pounds • no twisting or bending • no standing for more than 10 minutes • ability to sit for fi ve minutes • she should work three hours per day, three days per week with a rest day in between. The restaurant's co-owner advised the WSIB specialist that this McDonald's was a small restaurant with only 20 staff who couldn't assist Gahagan with her duties. It was a fast-paced environment with no opportunity to rest, sit or take breaks, and he was concerned Gahagan would re-injure herself. The specialist wasn't permitted to go behind the coun- ter to survey the worksite because of li- ability concerns. The WSIB found the restaurant failed to co-operate in the return-to-work pro- cess and sponsored Gahagan for custom- er service job training and a labour market re-entry plan. At the completion of the plan in August 2011, Gaha- gan's WSIB benefi ts ended. A month later, she applied for long- term disability (LTD) benefi ts with her in- surer. Around the same time in September 2011, Gahagan fi led a human rights complaint accusing the restaurant of discriminating against her by failing to participate in the return-to- work process in November 2009. Gahagan was approved for LTD ben- efi ts, but didn't receive any because she was already receiving WSIB ben- efi ts. She also applied for and received a Canada Pension Plan (CPP) disability pension. Shortly thereafter, McDonald's termi- nated her employment as of Oct. 3, 2011. Gahagan fi led a second human rights complaint alleging McDonald's failed to complete its statement for her LTD ap- plication and it unfairly terminated her employment — both constituting repri- Continued on page 6 Continued on page 7 Video footage doesn't prove vandalism AN ALBERTA arbitrator has reinstated a worker who was dismissed after the employer viewed video footage of him near a time clock that had been dam- aged. Goran Miljevic, 50, was a meat cutter at a Safeway grocery store in Calgary. The store used a time recording system on which employees punched in and out of work, recording their hours on a weekly time card. Employees inserted their cards into a slot on the time clock to record their in and out times. In early September 2012, the time clock was damaged by an unknown person. The store was able to get it running again without much trouble. Later that month, the clock once again wasn't working when the assistant manager tried to punch in. He noticed a white, sticky residue on the top of the time clock's slot, so he got the key and opened the box of the clock. Inside, the same substance was on the inside of the bottom of the clock cover and in the mechanism. Cleaning didn't get the clock working, so a service call was made. It turned out the time clock was irreparably damaged and a new one had to be ordered, which took 80 days to arrive. In the meantime, employees had to manually fi ll in their The only position which fi t the worker's capabilities was at a different location inaccessible to the worker.

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