Canadian Employment Law Today

Canadian Employment Law Today | 11 Canadian HR Reporter, a Thomson Reuters business 2016 More Cases Return-to-work offer didn't indicate what the duties were Reasonable notice meant to bridge the gap to next job fied work. However, CPR informed Fuoco that it was no longer prepared to offer him modified work. Company doubted employee's honesty about injury CPR felt Fuoco wasn't being honest about his injury and his ability to perform work. He made no attempts to see how he felt after physiotherapy before refusing to work after it; he tried to negotiate a late start time on his off-day from physiotherapy, which CPR took to mean he was capable of working; he didn't bring up the side effects of his medi- cation until faced with a return-to-work plan; and he claimed to have physiotherapy sessions on days the clinic was closed. On April 7, CPR terminated Fuoco's em- ployment for providing false and mislead- ing reasons for his inability to participate in a return-to-work plan from Feb. 28 to March 3, while receiving workers' compensation benefits. It also said Fuoco wasn't entitled to receive benefits because he deliberately mis- led CPR about his inability to work under the plan. e company appealed WorkSafeBC's decision to give Fuoco benefits, but Work- SafeBC determined medical evidence follow- ing Fuoco's refusal to return to work support- ed a finding that the refusal was reasonable. WorkSafeBC also expressed concerns that CPR's return-to-work offer didn't specify what duties Fuoco would be doing, which made it difficult to determine how reason- able or productive they were. e arbitrator found CPR "ambushed" Fuoco when it went behind his back to con- sult his doctor on a return-to-work plan and then called a meeting to offer the plan to him. Fuoco didn't have an opportunity to speak to his doctor about it and was caught off-guard, which understandably made him hesitant. In addition, there was no reason for CPR to be suspicious that the FAFs weren't accurate or weren't legitimate medical opin- ion, said the arbitrator. e arbitrator also found that the surveil- lance video — which depicted Fuoco open- ing doors, carrying coffee, coaching and clapping at a hockey game, and eating in a mall — didn't show anything that was incon- sistent with his FAFs and refusal to return to work, particularly since he was seen to be fa- vouring his arm throughout the footage. "ere's a difference between attending at work full-time even on sedentary duties when prescribed pain medication and en- gaging in what can only be characterized as low-impact daily leisure activities, such as those revealed in the video footage," said the arbitrator. e arbitrator found CPR was suspi- cious of Fuoco's injury from the start and this led to "some rather questionable tac- tics" such as accusing him of using steroids to WorkSafeBC, its aggressive pursuit of a return-to-work plan despite have two FAFs declaring Fuoco unfit for work, contacting his physician without his knowledge, and springing the return-to-work plan on Fuo- co knowing he hadn't had the chance to talk to his physician. e arbitrator noted Fuoco bore some responsibility by throwing up "every road- block he could conceive of to decline return- ing to work" at the end of February and in early March 2014. However, this didn't ex- cuse CPR's "guileful manner" in dealing with Fuoco's injury, said the arbitrator. e arbitrator agreed with WorkSafeBC that Fuoco's injury was legitimate and his claim was reasonable. It ordered CPR to reinstate Fuoco with compensation for lost wages and benefits and a penalty of 20 de- merits for conduct unbecoming regarding the return-to-work meeting on his record. For more information see: • Canadian Pacific Railway v. Teamsters Canada Rail Conference, Case No. 4417 (Can. Railway Office of Arb. & Dispute Res.). June 2013 when the school provided them with termination notices at the end of the school year. e teachers requested 12 months' notice. However, though the court found 12 months could be a reasonable period of notice, if the school paid out that much salary in lieu of notice it would be equivalent to keeping them on staff for another school year and prevent it from reducing its deficit that came about from reduced student enrolment. e court found this would put the school in a "dilemma" and the teachers should have un- derstood the character of their employment on year-to-year contracts was based on the school's needs and budget. e court deter- mined six months notice was appropriate. Michela, Gomes and Carnovale appealed to the Ontario Court of Appeal, arguing the motion judge erred in law by presuming they could find similar employment within six months of their termination and taking into account the school's financial difficulties as a factor in determining reasonable notice. e Court of Appeal noted that reasonable notice is intended to allow employees a rea- sonable amount of time to find replacement work and wrongful dismissal damages are designed to compensate employees for losses incurred during the reasonable notice period. It also found the motion judge erred in con- sidering the school's financial situation as part of the character of the employment. As a result, the appeal court found an em- ployer's financial situation had no bearing on the difficulty a dismissed employee may have finding another job — whether the financial situation is good or bad. Instead, the tradi- tional Bardal factors — age, length of service, the job market, importance of the employee's position — should only be considered. "An employer's financial circumstances may well be the reason for terminating a contract of employment — the event that gives rise to the employee's right to reason- able notice," said the Court of Appeal. "But an employer's financial circumstances are not relevant to the determination of reasonable notice in a particular case: they justify neither a reduction in the notice period in bad times nor an increase when times are good." e appeal court also noted that reduc- ing the notice period to six months would take the teachers to the Christmas season, and there was no evidence showing teach- ing positions would be available at that time of year, particularly considering their contracts were renewed before each school year started in September. e Court of Appeal allowed the appeal and increased the period of reasonable no- tice for the three teachers to 12 months. See Michela v. St. omas of Villanova Catholic School, 2015 CarswellOnt 17747 (Ont. C.A.). « from EMPLOYER SUSPICIOUS on page 9 « from FINANCES on page 1 An employer's financial situation had no bearing on the difficulty a dismissed employee may have finding a new job There's a difference between attending at work full-time and engaging in low-impact daily leisure activities

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