Canadian Employment Law Today

Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2015 More Cases Smoke but no fire for worker's WSIB claim AN ONTARIO worker's respiratory symp- toms were not related to her job grinding tobacco but more likely stemmed from a pre-existing condition, the Ontario Work- place Safety and Insurance Appeals Tribu- nal has ruled. e 60-year-old worker immigrated to Canada from Poland in 1990 and worked in a hotel and a factory before being hired by the employer, a cigarette manufacturer, in February 2001. Some reports indicated she smoked up to 20 cigarettes a day for 11 years before coming to work for the employer, quitting in 1997. However, the worker claimed she was only a social smoker and smoked once per month as a teenager. e worker's duties involved recording physical measurements of cigarettes and other tobacco products before they were tested. She also prepared tobacco samples before testing, which included pulling cigarettes from their packages and mark- ing them, sometimes blocking the filters with tape, and laying them in a condition- ing tray. Sometimes she had to roll tobacco into cigarettes and grind tobacco leaves and other forms of tobacco. Grinding tobacco involved cutting cigarettes, placing them in a grinder and placing the tobacco into a Ziploc bag. She wore a disposable respira- tor/mask over her mouth and nose when performing these duties. In 2005, the worker began experienc- ing respiratory symptoms such as choking and coughing. She underwent a chest x-ray, which came up negative, and was exam- ined by an allergy specialist. e specialist couldn't identify, an allergic cause for the symptoms, though it was noted she was on allergen immunotherapy 13 years earlier for an allergy to dust and smoke. On May 8, 2006, the worker completed a work refusal form, saying she started "cough- ing and sweating and I could not breathe properly and also my face turned red" while marking and blocking cigarettes. Twelve days later, she stopped working due to respi- ratory symptoms. e employer temporarily assigned her to other duties such as shred- ding paper, sorting documents, and cleaning glassware in a storage room. However, she continued to experience the symptoms and went off work. e employer also purchased customized respirators for its employees and the worker wore one while grinding tobacco. On May 23, the employer hired a con- sultant to assess the air quality and surface contamination of the work environment. e consultant concluded that all contami- nants and particulates in the worker's area fell within acceptable limits under Ontario Ministry of Labour standards. In August, the worker underwent a pul- monary function test, which produced in- consistent results. A physician found "no obvious airflow obstruction" and a medical report indicated the worker's symptoms were not related to her workplace as a cause. In February 2007, the worker underwent a CT scan of her sinuses, which were ruled "essentially unremarkable" and led to a con- clusion that her symptoms did not have an occupational component. e next month, the worker returned to work and was as- signed duties in a different area of the plant that didn't involve grinding tobacco. She measured and taped cigarettes on plates and didn't experience symptoms while per- forming these duties. e worker gradually resumed her regular duties — including grinding tobacco — by October 2008 in a different building. How- ever, her coughing and sweating symptoms returned. On Oct. 10, 2008, she stopped working and indicated she suffered from respiratory problems related to grinding to- bacco that had begun in May 2006. e worker submitted a functional abili- ties form from her doctor saying she should avoid grinding tobacco due to "reactive air- ways" when exposed to toboacco dust. In January 2009, the employer informed the worker it was unable to provide an environ- ment free of tobacco dust. It terminated her employment in the spring of 2009. e worker applied for workers' compen- sation benefits for "a cough and an onset of a general unwell feeling" stemming from her work. She was unable to return to any type of work since October 2008 due to anxiety and distress over her work situation, as well as "asthma exacerbation and bronchitis" in February 2011. e tribunal found that the evidence didn't support the conclusion that the worker's job significantly contributed to her respiratory symptoms. Under the province's workers' compensation legislation and the Workplace Safety and Insurance Board operational policy manual, an injury had to be caused by a work- place accident in the course of employment. e tribunal found medical reports indi- cated the worker had pre-existing and non- occupational allergy problems dating back to before she worked for the employer. Reports also found no link between her job and the symptoms, and an assessment found the work environment to be safe. In addition, there were periods of time when the worker ground tobacco and didn't suffer from the symptoms, with no change in her exposure levels. As a result, the worker's symptoms could not be causally linked to her employment, or could any psychotraumatic condition related to the symptoms or her inability to work. See Ontario Workplace Safety and Insurance Ap- peals Tribunal Decision No. 1495/14, 2015 CarswellOnt 13683 (Ont. W.S.I.A.T.). e company also claimed it felt Gordon wasn't productive, which made it more dif- ficult to deal with his unpleasant behaviour. In late March 2010, Altus terminated Gordon's employment. Because the com- pany alleged it had cause for dismissal, it didn't provide any compensation or notice. Gordon filed a wrongful dismissal com- plaint. In addition to his arguments regard- ing the conflict of interest issue and the fraud charges, he also argued swearing was com- mon at the worksite and, while he did swear frequently, he denied doing it excessively in the presence of senior management. e court found the staff member charged with fraud resigned three weeks after start- ing work and, though she may have retained some involvement with Altus, there was no evidence of any harm to the company. e court accepted Gordon's claim he believed the charges were a family issue. e court also found Altus had a pattern of minimizing swearing "by anyone except Alan Gordon." ough there was evidence swear- ing was common, the company's witnesses claimed they didn't swear at other people while Gordon frequently did. However, Gordon was never reprimanded or warned about the use of profane language and there was no record of his excessive swearing, said the court. In addition, Gordon addressed the conflict of interest regarding the loan and the manager cleared it. e court found that when Gordon gave notice of arbitration in the sale price dispute, Altus wanted to end the employment con- tract without paying severance by creating allegations of just cause. However, "there had been no process of providing warnings to Alan Gordon with written directions to improve," said the court. e court determined Altus failed to fol- low the progressive discipline process in its employee handbook. With no cause for dis- missal, Gordon was entitled to the severance provided for in his contract — nine months' pay plus three weeks for every year of ser- vice. Since Gordon worked for Altus for 17 months, his entitlement was $168,845. e court also found Altus' conduct was "mean and cheap" when it tried to get rid of Gordon as the arbitration for the sale price adjustment approached and the company tried to subvert the employment contract by making unfounded allegations of cause. For failing to "perform honestly" in its em- ployment contract, Altus was ordered to pay an additional $100,000 in punitive damages. See Gordon v. Altus Group Ltd., 2015 Car- swellOnt 13871 (Ont. S.C.J.). No warnings given « from MEAN AND CHEAP on page 1

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