Canadian Employment Law Today

Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2015 medical certificate, Hall probably wouldn't have admitted that he lied. e company felt Hall's misconduct was serious enough to warrant termination of employment, but it took into consideration his 17 years of service and the lack of disci- pline on his record. Rather than dismissing Hall, BA International decided to suspend him for 10 days without pay. e union grieved the suspension, argu- ing that while Hall's actions deserved some discipline, a 10-day suspension for an em- ployee with such long service was unfair, particularly since he owned up to his mis- conduct and acknowledged he was wrong. e union also noted that a year earlier, an- other employee had been suspended for one day for not bringing in a doctor's note after being requested to do so. e arbitrator noted that the collective agreement allowed BA International to request a doctor's note for any medical absence before the employee returned to work. In addition, sick leave was based on a self-reporting system and abuse of it is often difficult to detect. As a result, lying about it was a significant breach of trust, said the arbitrator. However, the arbitrator found the union had a point when it argued that Hall's length of service and lack of discipline on his record were mitigating factors. It was also impor- tant that Hall immediately came clean when his supervisor called him back about the doctor's note, said the arbitrator. "(Hall) recognized what he did was wrong, showed contrition and, as noted in the cor- respondence imposing the suspension, ap- peared to appreciate the seriousness of his actions," said the arbitrator. While it was important that employees who abuse sick leave be disciplined, the arbitrator noted it was also important to encourage employees to be forthcoming about their actions when confronted by the employer. erefore, Hall shouldn't receive greater discipline for trying to correct the situation than a co-worker who didn't bring in a doctor's note when ordered to do so, said the arbitrator. e arbitrator ordered BA International to remove the 10-day suspension and sub- stitute a lesser, five-day suspension instead, while compensating Hall for the five days of lost pay. See BA International Inc. and Uni- for, Local 87-M (Hall), Re, 2015 CarswellOnt 12622 (Ont. Arb.). More Cases Employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog includes a tool for readers to offer their comments, so discussion is welcome and encouraged. The blog features topics such as hidden disabilities, employee criminal charges, employees on social media, and reasonable notice. You can view the blog at www.employmentlawtoday.com. Employee's lengthy service a factor in his favour « from FALSE SICK CLAIM on page 1 Independent contractor's waiver agreement valid AN ONTARIO independent contractor is bound by the waiver agreement he signed and can't sue the companies for whom he worked for damages from an automobile accident that happened while he was work- ing, the Ontario Superior Court of Justice has ruled. Yehuda Kalash was a truck driver who was an independent owner and operator of his own business. Kalash had contracts with two companies, Carrier One Express and Train Trailer Rentals Limited and had worked under contracts to other compa- nies previously. e contracts with Carrier One and Train Trailer Rentals came about in September 2005 when Kalash applied for a truck driver job with them. Kalash didn't want to become an employee as he stood to earn more as an independent owner and operator, so the companies presented a series of documents outlining their relationship, including a memorandum of agreement, waiver agree- ment and capital compensation plan trust enrolment form. e latter two documents allowed Kalash to enroll in a private disabil- ity insurance plan in exchange for waiving his right to commence legal proceedings for loss of income, pain and suffering, and other damages that might arise out of injuries suf- fered from an accident. e insurance plan premiums would be deducted from his pay. Kalash claimed he was told to simply "go home and sign the documents" and he didn't need to read them, as he had to agree to en- roll in the plan and sign the waiver in order to be hired by the two companies. ere was no time limit for him to review and return the signed documents, but Kalash wanted to start work as soon as possible. He signed and returned the documents, with his wife's signature as a witness. On Aug. 8, 2006, Kalash was in a single- vehicle accident in the tractor-trailer he was driving. He suffered serious perma- nent injuries and received $700 per week in disability benefits for five years under the capital compensation plan. Five years was the maximum time period set out in the plan, so the benefits stopped in 2011. He then launched an action against Carrier One and Train Trailer Rentals for damages for pain and suffering and loss of income resulting from the accident. e court found Kalash had time to re- view the documents outlining the capital compensation plan and the waiver agree- ment and he clearly understood the nature of the documents. Kalash claimed there was an inequality of bargaining power between himself and the companies, but the court found he could have taken as much time as he needed to review the documents and seek legal advice. e only thing that may have rushed Kalash into signing the docu- ments was his own desire to start working soon, said the court. e court also found Kalash took ad- vantage of and benefitted from the capital compensation plan by receiving benefits for five years. He also sued the insurance pro- vider and received a lump sum settlement for his injuries. In addition, the coverage he received under the compensation plan was sufficient consideration for giving up his right to sue the companies, said the court. e court found the capital compensation plan and waiver agreement were valid and Kalash was bound to their terms. As a result, his suit for damages arising out of the acci- dent was dismissed and Kalsh was ordered to pay legal costs to the two companies. See Kalash v. Carrier One Express Inc., 2015 CarswellOnt 12427 (Ont. S.C.J.).

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