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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March 19, 2014 8 Published by Canadian HR Reporter, a Thomson Reuters business 2014 Published biweekly 22 times a year Subscription rate: $299 per year Customer Service Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: Carswell.customerrelations@ Website: Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Publisher: John Hobel Managing Editor: Todd Humber Editor: Jeffrey R. Smith E-mail: ©2014 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, pho- tocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the ser- vices of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any govern- mental body. We acknowledge the financial support of the Govern- ment of Canada, through the Publications Assistance Program (PAP), toward our mailing costs. GST #897176350 Sawmill worker felled for excessive absenteeism THIS INSTALMENT of You Make the Call features a worker who was dismissed for excessive absenteeism. Gordon Winsor, 47, began working for Tolko Industries, a logging company that ran a sawmill in High Level, Alta., in 2003. During his employment with Tolko, Winsor had some health problems, primarily stemming from seven hernia- related operations he had between 1994 and 2008. These operations led to mul- tiple absences while receiving short- term disability (STD) benefi ts as well as workers' compensation benefi ts. Be- tween 2003 and 2008, Winsor was on STD six times and workers' compensa- tion benefi ts three times. The operations resulted in medical restrictions that led to his requiring accommodation. Winsor missed nearly 18 per cent of his shifts in 2003 and between 32 and 58 per cent of his shifts from 2004 to 2008. Tolko accommodated him with modifi ed duties when he was able to work by placing him in a position on the midnight shift with lighter duties such as cleaning and monitoring the site for sparks during maintenance. Tolko was concerned with the amount of work Winsor was missing and in his annual performance appraisals his at- tendance was discussed. In a return- to-work agreement Winsor signed in October 2006, it was indicated that the agreement was subject to an "accept- able annual absenteeism rate of 2.5 per cent." In early 2008, Winsor was scheduled to have another operation. His doctor restricted him to lifting no more than 10 pounds until then. Tolko told him there was no work available within this restriction and he was placed on STD once again. Winsor's doctor indicated the surgery would improve Winsor's condition. Following the surgery, Tolko received a medical report indicating Winsor could return to work with a lifting restriction of 35 pounds, but this restriction was permanent and further improvement could not be expected. Tolko felt this was "back to the beginning" and there was no point in Winsor coming back to the sawmill if there would be no im- provement in his condition or his absen- teeism. On May 22, 2008, Tolko formally refused to reinstate him. After discussion with the union, Tolko returned Winsor to work in July 2008 with modifi ed duties. However, Tolko made it clear that "your continued em- ployment will remain dependent upon a much-improved attendance record." Winsor's pattern of absenteeism changed after that, but it was still signif- icant. Rather than lengthy absences, he was now absent frequently for short, in- termittent periods. These absences were more diffi cult for Tolko to deal with be- cause they interfered with production and the company wasn't able to plan for them. In June 2009, Tolko gave Winsor a written warning. That year, Winsor's overall absenteeism rate was 13.4 per cent — the best rate of his tenure with Tolko but still signifi cantly greater than the average rate of 4.8 per cent at the sawmill. He was warned that if his ab- senteeism exceeded the plant average, his employment would be terminated. In January 2010, Winsor's absentee- ism rate was still signifi cantly above av- erage. Winsor indicated he would like to be off the night shift and on a regular shift, which would help his sleep pat- terns and improve his attendance. How- ever, the light work he required was only available on the night shift. Tolko decided Winsor was unable to perform his job with acceptable atten- dance and terminated his employment on Feb. 4, 2010. IF YOU SAID Tolko should have done more to accommodate, you're right. The arbitrator noted Winsor's absen- teeism rate was "extremely poor" over his entire employment with Tolko, and Winsor had been warned several times about his need to improve or face dis- missal. Also, it was expected Winsor's attendance would improve following his fi nal surgery in 2008. Though it did improve somewhat, Winsor's absenteeism was still above Tolko's standards for acceptance and the changed nature of the absences made things more diffi cult for the company. In light of the medical restrictions Winsor was still under and the lack of a prog- nosis for future improvement, there was nothing indicating Winsor was "capable of future regular attendance at the date of his dismissal," said the arbitrator. However, the fact Tolko was able to accommodate Winsor for a number of years pointed to a likelihood that the company could have taken steps to see if continued accommodation was pos- sible, said the arbitrator. Tolko was ordered to reinstate Winsor and make further efforts to accommo- date him. See Tolko Industries Ltd. and IWA-Canada, Local I-207 (Winsor), Re, 2012 CarswellAlta 2338 (Alta. Arb.). You Make the Call Did Winsor's absenteeism constitute just cause for dismissal? OR Should Tolko have done more to accommodate Winsor's restrictions? How would you handle this case? Read the facts and see if the judge agrees

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