Canadian Employment Law Today

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GST #897176350 Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: Carswell.customerrelations @thomsonreuters.com Website: www.employmentlawtoday.com Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Carswell Media: Karen Lorimer Publisher: John Hobel Managing Editor: Todd Humber Editor: Jeffrey R. Smith E-mail: Jeffrey.R.Smith@thomsonreuters.com ©2015 Thomson Reuters Canada Ltd. All rights reserved. Emplo y ment Law Today Canad ad a ian www.employmentlawtoday.com How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 YOU MAKE THE CALL Was Novak wrongfully dismissed? OR Was the employer entitled to dismiss him with the notice and severance pay provided? Worker on modifi ed duties fi red after rejected workers' compensation claim THIS INSTALMENT of You Make the Call features a worker on modifi ed duties who was let go after his workers' compensation claim was rejected. Darcy Novak was a truck driver for H & R Transport, a truck transportation company in Calgary. Hired in 2010, he performed various duties including yard driving, city driving, preparing trailers, setting up pike trailers, and general yard duties. Over the fi rst couple of years with H & R, Novak had two instances of discipline — one regarding a missed day of work that was later cleared up after the absence was excused, and a rep- rimand for breaking a trailer seal. ere was no written notice or follow-up for the latter. In 2013, Novak was injured. He asserted his injuries were work-related and fi led a claim with the Alberta Workers' Compensa- tion Board (WCB) in September. His doctor provided letters to H & R Transport stating that Novak would need to be provided with light duty work until further notice and he couldn't sit for long periods of time. ere was no indication of how long these restric- tions would be in place or when Novak could return to normal duties. H & R Transport off ered Novak modifi ed duties consisting of monitoring the security gate at the Calgary yard three days per week with offi ce duties on a fourth day each week. His pay remained the same, and Novak start- ed his modifi ed work in mid-October. Around the same time, Novak was given an improvement notice — the company's initial form of discipline — for not following process. ere was no discussion on how to ensure it wouldn't happen again or what the consequences would be if it did. Once Novak started his modifi ed duties, he spent all of his time in the guard shack monitoring trucks and trailers entering and exiting the yard. He didn't usually have direct supervision in the guard shack and he didn't work in the offi ce. A little while later, the WCB rejected No- vak's claim for benefi ts, fi nding his injuries were related to his age, not his work. When H & R Transport management learned of this, it met to determine Novak's future with the company. Management had concerns with Novak's performance, so it determined there was no good reason to keep him working modifi ed duties if his injuries weren't work- related. H & R only off ered modifi ed work plans to employees with active WCB claims. On Jan. 6, 2014, Novak was asked to at- tend a meeting to discuss his modifi ed work. However, at the meeting he was told verbally his employment was being terminated. A termination letter was then provided to him stating that "we have simply not seen the level of performance progression to justify a continuation of your employment." Novak was given two weeks' pay in lieu of notice plus two weeks' severance pay. IF YOU SAID Novak was wrongfully dis- missed, you're right. e adjudicator found H & R Transport used poor performance as a reason for dismissal, but didn't give No- vak any warnings that his employment was in danger because of it. In fact, he had little supervision while performing his modifi ed duties in the guard shack, so it would be dif- fi cult for the company to prove it had identi- fi ed poor performance, said the adjudicator. ough the notice and severance pay pro- vided to Novak fell within the dismissal re- quirements under the Canada Labour Code, the adjudicator found H & R Transport acted in bad faith by unjustly dismissing Novak. In addition to dismissing Novak for unsubstan- tiated allegations of poor performance, the company fi lled his old position while he was on modifi ed duties. " e dismissal was arbitrary, and poten- tially discriminatory and unreasonable," said the adjudicator in awarding Novak com- pensation for salary, benefi ts and bonuses for nine months — the period between his dismissal and the decision — equaling $36,617.76. For more information see: • Novak and H & R Transport Ltd., Re, 2014 CarswellNat 4276 (Can. Labour Code Adj.). 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 employee off-duty conduct, preventing workplace bullying and violence, social media in the workplace, and biometrics. To view the webinar catalogue, visit cpdcentre.ca/hrreporter.

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