Canadian Employment Law Today

Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2015 more Cases WeBinaRs Interested in learning more about employment law issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as family status accommodation, independent contractors, occupational health and safety, the new labour market opinion regime, and a Canada Labour Code primer. To view the webinar catalogue, visit cpdcentre.ca/hrreporter. extended for another six months after that as the company would continue to look for additional work. For the company, things could go either way – business could pick up and Costa would be rehired full-time, or things wouldn't improve and Costa would be laid off. On Dec. 4, 2013, Electec's co-owner ad- vised Costa he should start looking for ad- ditional work but it wasn't necessary to seek a new job. e co-owner testified he didn't say not to look for a new job but that Costa's work might be ending. On Jan. 21, 2014, Costa arrived at work and was informed Electec no longer re- quired his services as it "couldn't afford him." He was given a termination letter and an offer of four weeks' severance pay on the condition he sign a release. Costa declined to sign. Costa sued for wrongful dismissal, claim- ing Electec didn't provide him with reason- able notice. Electec argued Costa was noti- fied on Dec. 4 his job was ending and had several weeks of working notice before his actual termination. e court found the Dec. 4 meeting did not meet the requirement for notice of termination, which had to be "specific, un- equivocal and clearly communicated to the employee that his employment will end on a certain date." ough Electic may have been aware its need for Costa was coming to a close, the co-owner didn't say anything definitive to Costa that he was being termi- nated. ere was no specific date and no mention of termination until Jan. 21, said the court. e court also found when Costa was given the option of performing shared work instead of being laid off, it wasn't notice he was being terminated, but rather was inter- preted as the company wanting to keep him in any way possible instead of letting him go. e court determined the actual notice of termination came on Jan. 21, 2014, and the notice period began on that date with no working notice. Taking into consideration Costa was 54 years old and faced a "thin" market for technical positions, he had a "noteworthy but not extensive" length of service of just over seven years, the court found Costa was entitled to 25 weeks notice. As a result, Electec was ordered to pay the equivalent of Costa's salary, vacation pay and benefits over 25 weeks plus court costs – a total amount of $23,719.80. See Costa v. Electec Engineering Inc., 2015 CarswellNS 28 (N.S. Sm. Cl. Ct.). No notice provided « from DRoPPing hint on page 1 Worker plays up symptoms in unsuccessful mental stress claim an onTario worker's claim for a psy- chotraumatic injury in addition to a physi- cal injury following a workplace accident has been denied by the Ontario Workplace Safety and Insurance Appeals Tribunal. e worker was a truck driver. On Oct. 14, 2008, he was directing another driver backing up a truck to a trailer. e worker slipped and fell, becoming trapped between the truck and the trailer. He suffered a se- rious injury to his neck, which was catego- rized as a "combined penetrating and blunt type injury" that caused a "deep neck lacera- tion" and fracture. e Ontario Workplace Safety and Insur- ance Board (WSIB) granted the worker full loss-of-earnings benefits for a four-year pe- riod in which he could not work, until Dec. 7, 2012. By then, he was considered to be fully recovered. However, after the worker was initially granted benefits for his neck injury, he claimed entitlement to additional benefits for a right shoulder injury and a psychotrau- matic disability, which he claimed were both caused by the workplace accident. A WSIB case manager denied both claims, as did an appeals resolution officer. e latter indicated the matter could be re- viewed again if more information could be provided, including an assessment for the psychotraumatic injury by the WSIB's psy- chological trauma program. After the assessment, a case manager once again denied both claims. e worker appealed to the tribunal. A psychiatrist diagnosed the worker with "severe major depression with pseudo de- mentia" and post-traumatic stress disorder, chronic pain syndrome and a driving pho- bia. However, the WSIB assessment de- termined the worker exhibited "consistent evidence of symptom amplification and/or fabrication based on extensive psychomet- ric testing." e report's conclusion was that the worker's symptoms indicated malinger- ing, as he didn't display the symptoms to such an extent outside of the assessment. e tribunal found the evidence support- ed the fact that the worker exaggerated his symptoms and it couldn't go against the as- sessment of the psychological trauma pro- gram, which included a psychiatrist, clinical psychologist and a psychometrist. ere was also no evidence the worker's own psy- chiatrist — who diagnosed him — actually assessed him rather than took the worker's word for his symptoms. e tribunal also found the worker didn't mention any pyschotraumatic issues to his family doctor or anyone else in the wake of the workplace accident. e worker only claimed of the symptoms when he was told his benefits for the neck injury would be ending. As a result, it found the worker was being untruthful regarding his claim for psy- chotraumatic injury and was not credible. e tribunal took a different view of the claim for a right shoulder injury. e evi- dence showed that following the accident, the worker was diagnosed with a right shoulder condition. is condition, said the tribunal, was likely related to the compensa- ble neck injury. e reason it wasn't initially documented was likely due to the serious- ness of the neck injury, which "was the main focus of medical attention and treatment that the worker received in the immediate aftermath of the injury." e tribunal also found the shoulder injury was in the same region of the body where he was struck in the accident and all his medical assessments attributed it to the accident. In addition, there was no other cause or reason for the development of shoulder problems in the time between the workplace accident and the diagnosis of the shoulder injury, said the tribunal. e tribunal determined the worker was entitled to compensation for his shoulder injury, but not a psychotraumatic injury. See Decision No. 2364/14, 2015 Carswel- lOnt 313 (Ont. Workplace Safety & Insur- ance Appeals Trib.).

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