Canadian Employment Law Today

Canadian Employment Law Today | 9 Canadian HR Reporter, a Thomson Reuters business 2016 Cases and Trends/Ask an Expert e office manager said Miraka called her the next day to ask to have his cheque sent home with another employee. He also men- tioned he had a hernia. He followed up with another call to say he had a paper from his doctor he would bring in. On June 19, Miraka returned with a Workplace Safety and Insurance Board (WSIB) form from his doctor indicating he could return to modified duties. He testified the owner came out of his office and told the office manager to "let him go" and give him his cheques. He again told Miraka to find a job somewhere else and "take unemployment." Miraka insisted he could still work if he had a helper and asked for a written reason for dismissal. However, the owner refused and said he had "no time to waste." Both the owner and the office manager de- nied the owner was in the office or spoke to Miraka on June 19. ey also both testified that the owner terminated Miraka's employ- ment on June 14 when he said he couldn't work due to pain. A.C.D. submitted the WSIB form and ob- jected to the claim on the basis that the in- jury didn't occur while he was working for the company, as no one had started work on the morning of June 14 when he claimed it happened. However, the WSIB allowed the claim and determined the hernia was work- related. Miraka filed a human rights claim accus- ing A.C.D. of discriminating against him on the basis of family status and disability when it terminated him. e tribunal found Miraka had a legitimate reason to take a day off when he found out his wife was ill and his children needed care. He didn't immediately ask to go home when his wife called on June 11 because he was near the end of his shift and it wasn't necessary to leave early. His absence the next two days, however, was due to his family status obligations and it would be unreasonable to expect him to leave his children essentially unsupervised and at risk of harm, said the tribunal. "(Miraka) had to miss work on June 12 and 13 because of substantive obligations that engaged his legal responsibilities as a parent to ensure that his young children were safe and secure," said the tribunal. "Accordingly, I find that (Miraka) had a (Ontario Human Rights Code)-protected need to be absent from work and take care of his children on the two dates in question." e tribunal also noted the "infrequent, sporadic or unexpected" nature of the situ- ation didn't provide an opportunity for Miraka to seek out alternative childcare ar- rangements, as Miraka had indicated when he said family members were busy with their own lives. It made the most sense for Miraka to be available when his wife suf- fered her anxiety attacks. e tribunal also found that since the of- fice manager granted Miraka the time off to take care of his family, it couldn't then come back and use that time off against him as rea- son for dismissal. No reason to make up injury As for Miraka's third day of absence, the tribunal found his inability to work due to a hernia was credible. Miraka provided a WSIB form filled out by his doctor that in- dicated he had a hernia. In fact, as it turned out, Miraka ended up having a surgical her- nia repair on July 2, 2012. At any rate, Mi- The company owner said he didn't think Miraka was suitable for continued employment because he didn't come to work. WSIB coverage meant injury met disability definition « from FAMILY on page 8 « from ASK AN EXPERT on page 2 Zero tolerance doesn't mean dismissal For more information see: • Bhasin v. Hrynew, 2014 CarswellAlta 2046 (S.C.C.). • Paquette v. TeraGo Networks Inc., 2015 Car- swellOnt 9801 (Ont. S.C.J.). • Styles v. Alberta Investment Management Corp., 2015 CarswellAlta 1858 (Alta. Q.B.). • Lumber & Sawmill Workers' Union, Local 2537 v. KVP Co., 1965 CarswellOnt 618 (Ont. Arb.). • U.S. Steel - Hamilton and USW, Local 1005 (Chapman), Re, 2014 CarswellOnt 9267 (Ont. Arb.). Meghan McCreary is a partner practicing labour and employment law with MacPherson Leslie & Tyerman LLP in Regina. She can be reached at (306) 347-8463 or mmcreary@mlt.com. raka was diagnosed with a hernia after he left work with pain that he didn't have before that morning, said the tribunal. As for A.C.D.'s position that Miraka couldn't have injured himself at work be- cause work hadn't started yet, the tribunal stated that "it does not make sense to me that someone who essentially planned to stage a workplace injury so that he could claim WSIB benefits would claim to have hurt himself working before he had actually done any work at all." In addition, the WSIB approved Miraka's claim for compensation for a work-related injury, which meant the injury fell under the definition of "disability" in the code, said the tribunal. A.C.D. maintained that it dismissed Miraka for failing to call in before the start of his shift on the second day he stayed home. However, at the time of dismissal, the owner told Miraka and the office manager that it was a combination of that as well as his missing two days that factored into the decision. e owner indicated that he needed someone who came to work every day and Miraka was unavailable to do the work for three days in a row. In testimony, the owner stated that he needed people to work every day so he could deliver his product to customers. He didn't think Miraka was suitable for continued employment with A.C.D. because "if a person does not come to work, how can I count on someone like that?" e tribunal found Miraka wasn't dis- missed for failing to call in before the begin- ning of his shift. Instead, he was dismissed for his absences — two that were for taking care of his family and one that was the result of a work-related injury. As a result, the pro- tected grounds of family status and disability were factors in Miraka's dismissal, said the tribunal. A.C.D. was ordered to pay $10,000 to Mi- raka for injury to his dignity, feelings, and self-respect from the discrimination. e tribunal noted Miraka's short term of ser- vice and the fact non-discriminatory rea- sons — his failure to call in on the second day of absence — also played a part of the dismissal decision led to a damages award on the lower end of the scale for dismissal. Because Miraka received workers' com- pensation from the date of his injury for three months, there were no damages com- pensating for lost wages. A.C.D. was also ordered to have all mana- gerial staff complete the Ontario Human Rights Commission's online human rights training course. For more information see: • Miraka and A.C.D. Wholesale Meats Ltd., 2016 HRTO 41 (Ont. Human Rights Trib.).

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