Canadian Employment Law Today

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GSt #897176350 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 @thomsonreuters.com Website: www.employmentlawtoday.com thomson reuters canada ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Carswell Media: karen lorimer Publisher: John hobel (on leave) Managing Editor/Acting Publisher: todd humber Editor: Jeffrey R. Smith E-mail: jeffrey.r.Smith@thomsonreuters.com ©2014 Thomson Reuters Canada Ltd. All rights reserved. Emplo y ment Law Today Canad ad a ian www.employmentlawtoday.com How would you handle this case? read the facts and see if the judge agrees YOU MAKE THE CALL 8 Truck driver who blacked out fi ghts dismissal THiS inSTAlmenT of You Make the Call features a truck driver with a medical condi- tion who was terminated following what the employer deemed a preventable accident. Derek McKirdy was a long-haul truck driver for Vedder Transport, a company that transported bulk food grade products based in Abbotsford, B.C. During McKir- dy's tenure with Vedder since he was hired in late 2007, there were several accidents causing damage which the company con- sidered preventable. McKirdy was injured in one of the accidents to the point where he was off work for several weeks on workers' compensation, and he received a two-day suspension following another, as well as a letter of discipline that stated any further in- cidents would result in additional discipline up to and including dismissal. On Sept. 2, 2011, McKirdy was on duty driving a truck and when he went off the road, rolling both the truck and its trailer on the highway median. McKirdy was injured and the company truck and trailer were both complete losses. Vedder reviewed the incident and con- cluded it was preventable. During the inves- tigation, McKirdy said he had blacked out just before he went off the road. After a neu- rologist saw McKirdy as part of his workers' compensation evaluation, the province of Alberta determined a medical condition might have caused the accident and sus- pended his licence. e neurologist indicated on Jan. 4, 2012, that McKirdy was fi t for work "at a heavy level" but was subject to restrictions, includ- ing he could not drive until six months after his blackout and certain heavy vehicles un- til one year after his blackout. After a year, the province would have to determine if his licence could be reinstated. e Alberta Workers' Compensation Board provided a report on Jan. 18 outlining the neurologist's assessment. Vedder requested McKirdy provide con- fi rmation that the root cause of the accident was due to a medical condition — rather than not maintaining a healthy lifestyle — from medical professionals before he would be approved to return to work, as it was con- cerned with the risk of allowing him to get behind the wheel again if he could experi- ence another blackout. McKirdy provided a doctor's report in April 2012 stating the blackout that caused the accident was likely the result of an inter- action between McKirdy's new anti-depres- sant medication and caff eine. As he was no longer on the medication and there had been no other blackouts, the doctor said McKirdy was safe to drive normal vehicles and could reapply for his truck licence as soon as the minimum suspension had expired. e company wasn't satisfi ed with the documentation McKirdy provided and, concerned for the safety of McKirdy, the public and the protection of its equipment, it terminated McKirdy's employment on May 28, 2012. McKirdy fi led a complaint of unjust dis- missal under the Canada Labour Code. you MaKe tHe call Was the dismissal unjust? OR Were there grounds for dismissal? iF yOU SAiD the dismissal was unjust, you're correct. e adjudicator noted that Vedder likely took an approach that was primarily concerned with the safety of both McKirdy and the public, but this may have clouded its assessment of the circumstanc- es. e workers' compensation reports and doctor's report made it clear that McKirdy was fi t for work "at a heavy level, subject to temporary restrictions" in January 2012, and in April 2012 the doctor's report indicated the conditions causing the blackout were unlikely to be repeated, said the arbitrator. "After considering the evidence, I am of the view that at the time (McKirdy) was terminated by Vedder's letter of May 28, 2012, (McKirdy) had provided Vedder with adequate and acceptable medical confi rma- tion of his condition and fi tness to drive, together with satisfactory and suffi cient verifi cation that the root cause of the Sept. 2 accident was not related to maintaining a healthy lifestyle but due to a medical condi- tion," said the adjudicator. McKirdy didn't ask for reinstatement as a remedy, and the adjudicator granted his requested for eight days' severance pay, two weeks' pay in lieu of notice, lost earn- ings from the time of his dismissal until he found a new position fi ve months later, and compensation for loss of personal items and equipment that weren't returned to him fol- lowing his dismissal. e total award was $8,068, plus an order for Vedder to "remove all reference or conclusion in all records" of McKirdy's employment that the accident was preventable. For more information see: • McKirdy and Vedder Transport Ltd., Re, 2013 CarswellNat 3427 (Can. Lab. Code Adj.).

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