Canadian Employment Law Today

6 | March 15, 2017 Canadian HR Reporter, a Thomson Reuters business 2017 sented to the owner and president of Times Kitchen — stated that Chodha had sus- tained an injury to his neck and back and he should avoid bending, lifting, and standing for more than 20 minutes for the next four weeks. Chodha came to work again on June 9 requesting modified duties, but the owner told him he had no work to fit his restrictions and he was sending two other employees home due to shortage of work. e owner's suspicion was raised later, on June 12, when processing paperwork for the workers' compensation claim he noticed the date on the note was Feb. 6, 2014. Since this was several months before Chodha be- gan working for Times Kitchen, he decided Chodha was being dishonest. He terminated Chodha's employment soon after, on June 26. e following week, the Ontario Work- place Safety and Insurance Board (WSIB) determined that Chodha had suffered a work-related injury to his back and was un- able to perform his job duties. As a result, Chodha was granted loss-of-earnings ben- efits for his time off work. Times Kitchen issued a record of employ- ment to Chodha indicating he had been dis- missed because he "submitted injury paper not related with Times Kitchen." Controversy over date of medical note Chodha claimed that the note he submit- ted was dated "02 06 2014," which referred to to June 2, the date of his injury. He ac- cused Times Kitchen's owner of changing the "02" to "Feb." and then using it as an excuse to fire him. He filed a human rights complaint alleging his dismissal amounted to discrimination because of disability as the fact he had been injured on the job and had reported it to the WSIB was the reason for termination —which also prevented him from receiving workers' compensation benefits. Further to his claim, he presented a note from his chiropractor stating that he was initially assessed on June 2 and had "never been seen by me on Feb. 6, 2014." Chodha also claimed the company's refusal to accommodate him with modified duties was also discrimination. A WSIB re-employment claims manager found Times Kitchen had terminated Chod- ha's employment "because of his injury and claim for benefits," which was a breach of the re-employment obligations under the On- tario Workplace Safety and Insurance Act. Times Kitchen was ordered to co-operate in the return-to-work process and offer Chod- ha's job back or face a $73,000 fine. Times Kitchen indicated it was prepared to re-employ Chodha and developed a return- to-work plan with modified work duties — including assistance and reduced work hours — with consultation from the WSIB. However, Chodha eventually decided he didn't want to return to work for Times Kitchen because of how he had been treated. Because he was refusing suitable work that was available, the WSIB cut off his loss-of- earnings benefits. An appeals resolution officer overturned this decision, finding the work that was available was suitable for Chodha and he was entitled to loss-of-earn- ings benefits up to Nov. 19, 2014 — the date Choda slipped on some ice in a non-work- related accident and exacerbated his inju- ries, from which he had almost fully recov- ered at that point. Chodha received employment insurance benefits until August 2015, after which he found a new job. Note's date a 'mystery' e tribunal examined a copy of the note — the original note was lost and Times Kitchen had a scan of it — and could not find any evi- dence the date was changed. ere was no indication of a whiteout and the date was in the same handwriting as the rest of the note. Due to the chiropractor's statement that he didn't see Chodha on Feb. 6, 2014, the tribu- nal accepted that, but it also found that the note wasn't altered and the reason the note was dated Feb. 6 was "a mystery." e tribunal noted that under the On- tario Human Rights Code, the issue was not whether the employer has offered suit- able employment — first determined by the WSIB as yes and then an appeals resolution officer as no — but rather whether the em- ployer has accommodated the worker to the point of undue hardship. e tribunal also noted that the code's definition of "disability" included "an injury or disability for which benefits were claimed or received under the insurance plan estab- lished under the Workplace Safety and In- surance Act, 1997." e tribunal found that Times Kitchen was engaged with the workers' compensation process until the owner noticed the date on the note. Since it had already found the date on the note hadn't been altered, it accepted that Times Kitchen sincerely believed the date was evidence that the note was fraudu- lent and Chodha was trying to substantiate an absence from work with a note from several months before his employment started. is belief in a fraudulent note was a "non-dis- criminatory explanation for the termination of the employment," the tribunal said. In addition, the tribunal found that Times Kitchen was a small business and Chodha's medical restrictions significantly limited the work he could do. It was reasonable to think that there were no modified duties available for Chodha immediately following his injury and it wasn't discriminatory for the owner to tell him so. "e duty to accommodate an injured employee who cannot do his regular duties does not necessarily require an employer to immediately offer alternative work," the tribunal said in dismissing Chodha's hu- man rights complaint. "e employer is not obliged to offer alternate work if there is no such work or if the employee would not have been working if the injury had not occurred because of a shortage of work." For more information see: • Chodha v. 1352866 Ontario Inc., 2016 CarswellOnt 21283 (Ont. Human Rights Trib.). Employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog includes a tool for readers to offer their comments, so discussion is welcome and encouraged. The blog features topics such as employee personal leaves, definition of the workplace, fixed-term contracts, and workplace harassment. You can view the blog at www.employmentlawtoday.com. « from INJURED on page 1 Worker accused employer of changing date

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