Canadian Employment Law Today

Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2016 More Cases Komarnisky parked the de-icing truck near the aircraft the same way he had done more than one thousand times before. He left the truck with the engine running and proceeded to help with baggage handling and other matters. A few minutes later, the truck began to roll and it hit the aircraft be- tween an engine and a ramp being used by passengers to board the aircraft, damaging the propeller. Komarnisky ran to the truck, checked the parking brake, and backed the truck up. He continued to work after the in- cident. SAS investigated and said he had put the parking brake on as normal, but someone had loosened the tension on it. He sug- gested the previous driver had done it and he checked the brake because he thought he might have left it off, but claimed it was on and just loose. SAS re-enacted the incident and found the truck would not have moved if it had been placed in neutral and the parking brake ap- plied. A review of video clips showed passen- gers were boarding and several ground staff were walking nearby, creating a dangerous situation. Its investigation concluded, SAS termi- nated Komarnisky's employment for actions that were "in disregard to safety and was consistent with serious and wilful miscon- duct and a breach of our company rules and regulations." e adjudicator had difficulty believ- ing Komarnisky's claim that the problem was primarily the parking brake's tension. SAS's re-enactment and tests of the de-icing truck's braking system didn't support Kom- arnisky's explanation. "While (Komarnisky) may sincerely be- lieve that the cause of the incident was the failure of the parking brake, the evidence obtained both before and after the incident does not support his belief," said the adjudi- cator. "It appears to be a last minute attempt by (Komarnisky) to shift responsibility for the incident to (SAS)." e adjudicator found SAS conducted a "full and fair investigation" and the con- clusion it reached was not unreasonable. Komarnisky violated the company's safety policies and placed passengers and ground crew members in danger as a result, as well as causing damage to an aircraft that had to be taken out of service. Given Komarnisky had previous disci- pline — though he disagreed with the reason for it — and the seriousness of his breach of safety policy, the adjudicator agreed that dis- missal was appropriate. "e potential for harm through his con- duct that demonstrates not only an unwill- ingness to accept responsibility for his errors but also a failure to adhere to established policies and procedures is sufficient reason to terminate his employment," said the ad- judicator. "e employer has lost trust that (Komarnisky) will follow established poli- cies and procedures. His behaviours present a risk to the employer that does not have to be tolerated." See Komarnisky and Strategic Aviation Systems Inc., Re, 2015 CarswellNat 7396 (Can. Labour Code Adj.). Employer re-enacted incident « from DEFLECTING on page 1 Worker susceptible to injury but job caused injury: Tribunal AN ONTARIO worker has won an appeal for workers' compensation benefits for a neck injury found to be caused by her work duties. e worker was employed in a factory en- vironment making car frames on robotic de- vices. She often had to load and unload parts in an open frame used to guide the machine as part of her duties. She had a pre-existing impairment to her neck and left shoulder due to earlier injuries in early 2008, for which she had received a 10-per-cent pension in an earlier workers' compensation claim. In March 2011, the worker was perform- ing her duties and lifting items over a wall which had a safety bar. e worker was fairly short in stature and the safety bar was at chest level, requiring her to bend at the chest, stand on her toes and reach down into the machine to get a grip on the part she had to lock into place. After doing this all day, the worker said she had bruises on her ribs from the safety bar. She asked her employer for a lift or ramp to be raised up so she wouldn't have to bend at the chest, but her request was refused. Her doctor suggested she get a mat or something else to stand on, but that didn't happen either. e worker began to feel pain in her up- per back, neck and left arm. She visited her doctor in April because of the pain and was diagnosed with a trapezius strain caused by repetitive bending forward and reaching. e doctor issued restrictions on lifting, bending, and reaching for the worker and re- ferred her to physical therapy. Her employ- er provided modified work that involved lifting boxes and parts, but she found this didn't help her condition. Her doctor then increased her restrictions and the employer had no further modified work for her. e doctor also issued a report a few months later stating that since the worker hadn't been involved in any other activity that could have caused the symptoms and hadn't experienced pain since her injury three years earlier, the conclusion was that the worker's symptoms "certainly arose from the activity that she was required to do at work." e worker had x-rays taken in May 2012 which found she had degenerative disc dis- ease in her mid-cervical spine and mild ar- thritis. Early in 2013, the worker had to take time off and her doctor provided a report that said she was "disabled as a direct re- sult of her WSIB compensable injury to her shoulder and neck." However, in August 2013 a workers' compensation adjudicator found the x-rays and other medical reports showed the worker had "considerable non- work-related factors including fibromy- algia and degenerative disc disease in the neck that could be the cause of the prob- lems" and rejected the worker's claim for workers' compensation. Shortly after her claim was rejected, a physiatrist observed pictures of the worker's workstation and submitted a report that while her degenerative disc disease and oth- er conditions made her more susceptible to repetitive strain injury, the cause of the prob- lems was the repetitive long reaching and bending required at work and her injuries were "directly attributable" to the worker's workstation. e worker appealed her claim to the On- tario Workers' Safety and Appeals Tribunal, which noted that the available medical opin- ions were in the worker's favour. e doctor noted the worker hadn't suffered from neck pain between 2008 until her most recent injury, and the physiatrist and physiothera- pist agreed the pain was attributable to the bending and reaching the worker did as part of her job. e tribunal found that while the worker had a pre-existing condition that may have made her more susceptible to repetitive strain injury, it was the activities she did on the job that actually caused her most recent injury. As a result, the worker was entitled to workers' compensation benefits for the most recent injury causing her neck and back pain. See Decision No. 2395/15, 2015 CarswellOnt 19787 (Ont. Workers' Safety and Appeals Trib.).

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