Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2016 Cases and Trends 6 | April 13, 2016 was no definition of disability in the agree- ment, relying on the insurance provider's group insurance policy. Employees became eligible for employer-paid coverage in its medical services plan after 62 shifts and re- mained eligible until termination of employ- ment. A 45-year-old Sun-Rype employee, Carlo Pucci, was injured in a motor vehicle acci- dent on June 23, 2013, when his vehicle was broadsided on the driver's side. He was un- able to work due to his injuries and received first short-term, then long-term disability benefits. e insurance provider set up a gradu- ated return-to-work program in January 2014 after Pucci passed a physical assess- ment showing he could meet job demands for squatting, pushing, pulling, lifting, and carrying. However, Pucci's doctor didn't ap- prove and said Pucci couldn't return as there was no light duty available. Another return date was planned for early March when Puc- ci indicated he wanted to return, but as the date approached Pucci was still in pain and without light duties available, he couldn't work. On March 6, 2014, the insurance pro- vider deemed Pucci was no longer disabled and should be working full-time. Pucci at- tempted to return to work twice under a graduated return-to-work program, but each time he was unsuccessful. He appealed the ending of his benefits, but the insurance provider found that although he might still be experiencing symptoms from his injuries, "the information on file does not support a condition of a severity to preclude you from performing the essential duties of your oc- cupation." Return to work plan unsuccessful Another graduated return-to-work plan was developed in August 2014 that allowed Pucci to rotate his position and take breaks more frequently, step in and out of the pro- duction line for whatever time he could tolerate, and do less demanding tasks for as long as he chose. Pucci didn't see the plan, but Sun-Rype ran it by Pucci's doctor, who approved it. Pucci returned under the graduated work plan and worked for four hours on Sept. 2. He tried as much as he could, but he was afraid of re-injury and was reluctant to do some tasks. He worked four hours on each of the next two days but reported back and shoulder pain His chiropractor provided a note saying Pucci was unable to perform the activities he was previously doing at work and it may be between six and 18 months before he could work again, depending on how his treatment went. Pucci's doctor con- curred with the amount of time indicated before another return to work was contem- plated. Pucci continued with his graduated pro- gram but was unable to continue after Sept. 19 due to back and shoulder pain. He ap- pealed again for reinstatement of his long- term disability benefits, but the insurance provider denied the appeal. In December 2014, Pucci's doctor wrote to Sun-Rype stating that Pucci was unable to do the type of work required at his previ- ous occupation on the production line and would require retraining for alternate em- ployment that didn't require activities such as rapid bending and lifting. By March 2015, Sun-Rype concluded that at this point, it was unlikely Pucci would be able to return to work in the foreseeable fu- ture. On March 10, the company terminated Pucci's employment for non-culpable absen- teeism. Pucci grieved the dismissal, indicating that his family doctor said he wasn't able to return to work due to the fast-paced work environment that involved twisting, turn- ing, bending, and lifting above the shoul- der — Pucci's job on the production line involved rotating duties with other workers labelling boxes, pushing boxes on a convey- or to counting stations, stacking boxes on pallets, and moving pallets. Pucci also had a medical opinion that while there was some improvement in his abilities, there was no prognosis of when he would eventually be able to work. Sun-Rype responded by saying Pucci's employment contract was frustrated be- cause it was unable to accommodate him after so long and there was no indication he could return to work "within a reasonable timeframe." e union grieved the termination, ar- guing Pucci was absent for 12 consecutive months and was therefore subject to the collective agreement provision placing him on the inactive list and protecting his em- ployment. It claimed the provision ensured employees weren't dismissed for reasons be- yond their control. Sun-Rype disagreed, arguing the provi- sion didn't necessarily preclude it from dis- missing an employee on the inactive list any more than another employee on the regular seniority list. e arbitrator found that a plain reading of the collective agreement provision cover- ing the inactive seniority list led to the con- clusion that it had "a simple administrative purpose." It relieved Sun-Rype from having to continue to contact employees who were unable to work and not worry about sched- uling them. "e subject matter, language and place- ment of (the inactive list provision) in the collective agreement is not intended to cre- ate a category of employees immune to dis- missal for innocent absenteeism," said the arbitrator. "Such an extraordinary benefit would require much clearer language than identification of the placement of an em- ployee within the seniority list." e arbitrator found the placement of an employee such as Pucci on the inactive list after 12 months of absenteeism did not pro- vide immunity or protection from termina- tion if the employee wasn't receiving long- term disability benefits, as Pucci wasn't after March 6, 2014. e arbitrator also found that Sun-Rype received conflicting messages from Pucci's doctor throughout the process, as the doctor initially approved return-to-work plans but then put the kibosh on them when it became time to implement. e latest information Sun-Rype had about Pucci's status was that he required six to 18 months of chiroprac- tic treatments and then that he was unable to perform the duties of his old position. e company considered various options and concluded there was nothing left Pucci could do. "It was clear from the failed graduated returns to work …and his physician's statements in December 2015 that Mr. Pucci could not work a variable or lighter work schedule," said the arbitrator. "ere were no available additional measures to accommodate him and he was not going to be able to return to work in the foreseeable future, if ever. At this point, the employer had discharged its duty to accommodate Mr. Pucci, who could no longer provide any labour." e arbitrator determined Sun-Rype had sufficiently explored accommodation op- tions and reached the point of undue hard- ship. It did not discriminate when it termi- nated Pucci's employment after an absence of more than two years. For more information see: •Sun-Rype Products Ltd. and TC, Local 213 (Pucci), Re, 2016 CarswellBC 485 (B.C. Arb.). Multiple return-to-work plans were unsuccessful « from NO DISCRIMINATION on page 1 "The (provision in the) collective agreement is not intended to create a category for employees immune to dismissal for innocent absenteeism."

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