Canadian HR Reporter

CANADIAN HR REPORTER April 20, 2015 16 FEATURES/EMPLOYMENT LAW Start by learning the key components with Basic Workplace Investigation Techniques & Report Writing Workshop or enhance your skills with one of our Advanced training sessions. • Investigating Complex Cases • Interviewing and Dealing with Difficult Witnesses • Assessing Credibility • Conducting Workplace Assessments • The Essential Human Rights Primer for Workplace Investigators • Understanding and Addressing Bias Basic and Advanced Workplace Investigation Training for HR Professionals from Canada's Leading Workplace Investigation Experts. For more information and for workshop dates call or visit: (416) 847-1814 | RubinThomlinson.com Learn to address inappropriate workplace behaviour before it becomes a legal issue. resignation, while the code only required him to give one week's notice. Court rules e court found that the code did not have a requirement for com- pensation for unused sick days or other benefits such as RRSP contributions. ese did not fall under the code's definition of pay, which stipulated "wages due or paid to an employee and compensation paid or due to an employee…but does not include deductions from wages that may lawfully be made by an employer." e court also found Moarbes' argument that the job offer was void because it didn't meet the code's requirements for notice of resignation to be "absurd," since it didn't affect his entitle- ment to notice of termination by Heka. In addition, if the resignation provision was void, it was sepa- rate from the rest of the agree- ment and did not void the entire agreement, said the court. Regardless of the viability of the termination and resignation clauses in the employment agree- ment, the court found Heka fully paid Moarbes for the work he did for the company and the three weeks' pay in lieu of notice was in compliance with the code's mini- mum notice requirements. ough the engineer may have otherwise been entitled to more common law notice, the signed agreement displaces any such en- titlement. Also, given that he was paid his full statutory severance, there was no evidence Moarbes suffered any loss, said the Nova Scotia court in upholding the revised job offer. e court also found the job duties outlined in the offer were broad enough to cover the work Moarbes actually did, particular- ly since it was a small office with only a few staff. ough Moarbes may have taken on the role of a go-between, his job duties did not change and he unilaterally ac- cepted that role. Additionally, the amount of travel was well within the impres- sion given at the time of the job offer, said the court. Finally, Heka did not exert pres- sure on Moarbes to sign the agree- ment at the time, found the court. ough he may have been con- cerned the offer would be revoked if he continued to try to negotiate changes before signing, there was no suggestion the offer would be revoked. "While Mr. Moarbes character- ized this case as one where there was a lot of miscommunication and unaligned expectations, I find that it is really a case of Mr. Moarbes having entered into a contract that he subsequently regretted, but there is no viable reason why he should not be held to its terms despite how much he might dislike them now," said the court in dismissing his claim. For more information see: • Moarbes v. Heka Electronics Inc., 2015 CarswellNS 174 (N.S. Sm. Cl. Ct.). Jeffrey R. Smith is the editor of Cana- dian Employment Law Today, a pub- lication that looks at workplace law from a business perspective. He can be reached at jeffrey.r.smith@thomson- reuters.com or visit www.employment- lawtoday.com for more information. 'Absurd' argument FIRED EMPLOYEE < pg. 5 "It is really a case of Mr. Moarbes having entered into a contract that he regretted, but there is no reason why he should not be held to its terms." any kind, employees must provide written consent for the release of information to an insurer. It is important to know that consent forms are customized for specific purposes, such as assess- ing a disability claim. ey are also time-limited, so signed consent forms are renewed from time to time. It is not uncommon for insurers to require updated consent forms every calendar year. Privacy concerns It is important for employees to know that if they are off work due to a medical condition, their em- ployer is not entitled to any of the medical details contained in their claims file. This includes the diagnosis, symptoms the employee is expe- riencing, the nature of the treat- ment for the condition or the names or specialties of their treat- ing doctors. Although medical evidence is required as part of the disability claim submission, medical forms can be sent directly to the insur- er after being completed by the health-care provider. Any medical information an in- surer requests or receives regard- ing a disability claim is treated confidentially. An employer, an employee's supervisor, a co-worker — even the disabled employee's family members — are not privy to any of the medical details within the insurer's file. However, in rare circum- stances, an employer may be in- formed of serious situations such as a highly communicable disease that may put other employees at risk. Under these circumstances, the employer would be required to take the necessary precautions to protect others in the workplace. Although an employer does not have the right to know a disabled employee's medical diagnosis, a case manager can advise employ- ers of an employee's restrictions and limitations as it relates to his ability to perform his job. Since it is the employer's duty to accommodate the disabled em- ployee when he returns to work, the employer is entitled to infor- mation that will help facilitate the accommodations required, such as the need for special equipment, the need for and timing of breaks, and supportive measures that may be required from supervisors and co-workers. e case manager co-ordinates a return-to-work plan with all stakeholders — the employee, employer and health-care pro- vider — to ensure realistic and at- tainable return-to-work goals are set. When setbacks arise, the case manager manages the plan with the employee's state of health and privacy in mind. Complex situations Claims don't always run smoothly. Sometimes they are denied and must be appealed, meaning more information is required to make them approvable. Some claims can be appealed several times without ultimately being ap- proved, while others are approved with the benefit of new informa- tion. Often, there are legitimate reasons for declining a claim, such as policy exclusions or provisions that limit benefits. It is important to know, how- ever, that there are places to go if an insurer's decision is not accept- able to an employee. For instance, every insurer has an ombudsman who manages complaints. Em- ployees should be encouraged to escalate concerns to the insurance company ombudsman if they feel their claim has been managed unjustly. Beyond this, there is also an OmbudService for Life and Health Insurance (OLHI) that helps consumers manage complaints. Lastly, it is important to note that disability claims are not im- mune to fraud. is doesn't mean fraudulent claims are regular but they do exist. Employers, em- ployees, health-care providers and case managers all have a re- sponsibility when it comes to sub- mitting and managing legitimate claims. In the long run, fraud costs everyone. Laurie Down is director of disability policy at the non-profit Canadian Life and Health Insurance Associa- tion. For more information about the CLHIA or OLHI go to www.clhia.ca or www.olhi.ca. DISABILITY < pg. 14 Employer not privy to details The employer is entitled to information that will help facilitate the accommodations required, such as the need for special equipment.

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