Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2016 ARBITRATION AWARDS May 30, 2016 < Arbitration pg. 1 short-term disability benefits so she took sick days until she was able to return on Jan. 21. In May 2013, Mou suffered a miscarriage, followed by the death of her mother-in-law shortly thereafter. These two events led to severe depression, which disabled Mou and required her to take time off work. Because she had used up her sick days in January, Mou had to use vacation leave. Mou's absences in January and June led to her falling short of her targeted hours for 2013. In her an- nual performance evaluation, her supervisor told her she needed to improve her ability to meet sched- uled delivery objectives. On Feb. 27, 2014, Mou's em- ployment was terminated. Mou felt the issues MHPM had with her performance were relat- ed to the time she had to take off because of her injury, miscarriage, depression and MHPM's failure to accommodate her issues. She filed a complaint of discrimination based on disability. MHPM filed an application to dismiss the complaint on the basis Mou did not have a disability and therefore it couldn't have played a role in her termination of employ- ment. MHPM argued that for an inju- ry or illness to qualify as a disabil- ity, there had to be an element of permanence and persistence to it. Mou's health issues were tempo- rary and she fully recovered from them, so they didn't affect her par- ticipation in the workplace or so- ciety, said the company. The tribunal noted that the On- tario Human Rights Code defined a physical disability as "any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness." It was also important that the code referred to the right to equal treatment without discrimination "because a person has or has had a disability or is believed to have or to have had a disability." This statement showed the code contemplated that a disabil- ity didn't have to be permanent, said the tribunal. The tribunal agreed that cer- tain individual temporary ail- ments, such as a cold or flu, wouldn't be seen as a disability as they don't hinder someone's "full participation in society." However, it found that Mou's injury and miscarriage were more than just that. Mou's January 2013 injury re- quired three weeks to heal and kept her from working, despite the fact she tried to return to work twice during that time. Though Mou had recovered from both her injuries by the time of her dismissal, the tribunal found the absences that played a role in her dismissal were disabil- ity-related. The tribunal found Mou es- tablished she had a disability and dismissed MHPM's application to dismiss the complaint. Reference: MHPM Project Leaders and Winnie Mou. Jennifer Scott — arbitrator. Raquel Chisholm for the employer, Mor- gan Rowe for the employee. March 14, 2016. Harvey's manager incorrectly assumes employee gives two weeks' notice when she quits her job AN ONTARIO employer jumped the gun when it assumed an angry employee quit her job and provided two weeks' notice without actually confirming that was the case, the Ontario Labour Relations Board has ruled. Patricia Kelly worked at a Har- vey's restaurant in Ontario. On Nov. 11, 2014, Kelly found out the restaurant's general manager was not sending her to a training program she wanted to take. Kelly was angry about it and left the res- taurant on her scheduled break, saying she quit. However, at the end of her break she returned to the restaurant. The general manager told the owner of the restaurant Kelly had quit, and he indicated he wanted to hear it directly from Kelly be- fore accepting that. When Kelly returned, the owner met with her in his office. According to the owner, Kelly confirmed she was quitting and he told her he accepted her res- ignation. He assumed she was giving her two weeks' notice at that point, though she didn't spe- cifically say so — he assumed two weeks because that was the nor- mal amount of notice employees gave for resignations. However, he didn't confirm with Kelly that she was actually giving her two weeks' notice of resignation. Kelly continued to work her scheduled shifts over the next one-and-one-half weeks. Eight days after the incident on Nov. 19, she received a job offer from another employer — following an interview she had a few days pre- viously — that she accepted. She provided the restaurant with a written notice of resigna- tion the next day stating her last day of work would be Dec. 5. However, the general manager told Kelly she didn't have to work for the remainder of her notice period. Kelly sought clarification and was told she had given notice of resignation on Nov. 11, so her last day of work would be Nov. 25 — meaning she only had two shifts left for which she would be paid. Kelly filed a claim for termina- tion pay up to Dec. 5, claiming she didn't actually quit her job on Nov. 11 and she didn't give notice of resignation until Nov. 21. An employment standards officer sided with Kelly and ordered Har- vey's to pay Kelly termination pay for terminating her employment early. Harvey's appealed the deci- sion to the board, arguing Kelly quit her job and therefore wasn't entitled to termination pay. The board found Kelly said words to the effect that she quit as an angry response to not be- ing sent to the training session. However, the evidence showed she didn't have a subjective or objective intention to quit that day — she returned to work after her break and continued to work without incident. These actions were "simply not consistent with an individual who quit her job," said the board. The board also found the owner had a discussion with Kelly but never actually confirmed a date of resignation. He assumed she was giving two weeks' notice but didn't actually confirm that was the case. At no point then or subsequently was Nov. 25 discussed with Kelly as the date of her final shift, said the board. The board found Harvey's violated the Ontario Employ- ment Standards Act, 2000, when it failed to pay her until her indi- cated date of resignation of Dec. 5, 2014. Harvey's was ordered to pay Kelly compensation for two weeks' salary plus vacation pay. Reference: Murphy Restaurants Inc. operating as Harvey's 2513 and Patricia Kelly. Roslyn McGilvery — arbitrator. Lloyd Murphy for the employer, Sidney Kelly for the employee. March 29, 2016. Employer never confirmed date of resignation: Arbitrator

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