Canadian Employment Law Today

November 12, 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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PM40065782 Worker's dishonesty muddles duty to accommodate Employer had evidence that should have quelled suspicions about worker's injury, but employee didn't help his case by exaggerating By JEffREy R. SMiTh An OnTAriO COMPAnY should have relied on medical information rather than surveillance of an employee off work with an injury, despite the employee being less than forthright with his status, an arbitrator has ruled. Tony Dolce was employed as a boxer in the Ontario division of Natrel, a producer of milk based in Markham, Ont., owned by a co-operative of dairy farmers. Dolce's job involved moving boxes on skids and wrap- ping them, which involved bending, kneel- ing and constantly being on his feet. Dolce injured his knee before joining Na- trel in 1989, for which he received workers' compensation benefi ts. Over time, the knee continued to bother him. Absenteeism be- came a problem for Dolce and Natrel was prompted to caution him about it. In 1995, Dolce was suspended for 10 days for failure to report to work when we was fi t to do so, though he had no other discipline other than the cautions. In May 2012, Dolce's doc- tor provided assurance that Dolce was fi t to perform the essential duties of his position without limitations and there shouldn't be future attendance issues. Dolce's attendance didn't improve and he was told in February 2013 his absentee- November 12, 2014 Emplo y ment Law Today Canad ad a ian Mental stress compensation awarded by tribunal pg. 3 Workers compensation restriction discriminatory with Stuart Rudner no just cause if allegations aren't investigated A BriTish COluMBiA employer must pay reasonable notice to a dependent con- tractor it terminated for suspected attempts to transfer customers to a competitor that it didn't properly investigate, the B.C. Su- preme Court has ruled. Mohammed Khan was a courier truck driver for Ace Courier, a freight and parcel transporting company based in Burnaby, B.C. Ace Courier is a division of Calgary- based All-Can Express. Khan, as is the case with most drivers for Ace, was an owner/operator who owned his own vehicle while working for Ace. He was assigned a route and had responsibility for providing courier service to customers on that route. As part of his contract, Khan was responsible for all costs associated with his vehicle and Ace paid him by the job. e contract specifi cally stated Khan was a self-employed contractor — he paid his own income taxes — and would not work for another courier company while working for Ace or for 12 months after he stopped working for Ace. Khan also wore a company uniform and carried a company-issued telephone. He was paid according to rates Ace set and the Ace logo was on Khan's truck, despite the fact Khan owned it. ough Ace was generally pleased with the job Khan did since he started working for Ace in 2007, in early 2012 the company became concerned that he was involved in a competitor company trying to steal Ace customers. e manager met with Khan and advised him another driver had made a complaint and cautioned Khan about trying to transfer business. He had no proof and hadn't followed up the complaint, so the manager left things at that. Khan denied any wrongdoing. About two months later, the manager called another meeting with Khan. e manager said he had received information from one of the other drivers that Khan had handed out rate sheets for a competitor at pick-up locations of two customers. e other driver had said two customers had told him that Khan had given the sheets to them while Khan covered his route for him. Khan again denied it and there was no fol- low-up. In September 2012, a long-time driver for Ace told the manager Khan off ered him a cRedit: LaNe v. eRickSoN/ShutteRStock worker's holdout for 'perfect' accommodation fails pg. 4 Employee's refusal of accommodation options not a failure of employer to accommodate doctoR's note on page 8 » HeaRsaY on page 11 » asK an eXPeRt pg. 2 Bad performance reviews • Employee lied on application

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