Canadian HR Reporter

CANADIAN HR REPORTER April 3, 2017 EMPLOYMENT LAW 5 Dismissal of injured employee not discriminatory: Ontario tribunal Employer didn't have modified work available, thought worker gave false medical note An Ontario employer did not discriminate against an injured worker when it didn't have work to fit his restrictions and later fired him for what it thought was a fraud- ulent medical note, the Ontario Human Rights Tribunal has found. Pardeep Chodha was an assem- bler at Times Kitchen and Bath, a producer of kitchen and bath- room cabinetry in Toronto. He was hired on April 21, 2014. A few weeks into his employ- ment — on June 2 — Chodha was moving a piece of cabinetry with a co-worker when he started feeling pain in his back. He left work to see his doctor, who referred him to a chiropractor. On June 4, he provided a note from the chiro- practor and applied for workers' compensation benefits. The doctor's note — which Chodha presented to the owner and president of Times Kitchen — stated that Chodha had sustained 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 back to work 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 a shortage of work. On June 12, the owner's suspi- cion was raised, however, when processing paperwork for the workers' compensation claim and he noticed the date on the note was Feb. 6, 2014. Since this was several months before Chodha began working for Times Kitchen, he decided Chodha was being dis- honest. He terminated Chodha's employment on June 26. e following week, the On- tario Workplace Safety and Insur- ance Board (WSIB) determined Chodha had suffered a work-re- lated injury to his back and he was unable to perform his job duties. As a result, Chodha was granted loss-of-earnings benefits for his time off work. Times Kitchen issued a record of employment to Chodha indi- cating he had been dismissed be- cause he "submitted injury paper not related with Time Kitchen." Controversy over date Chodha claimed the note he sub- mitted was dated "02 06 2014," which referred to June 2, the date of his injury. He accused 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 dis- crimination because of disability as the fact he had been injured on the job and had reported it to the WSIB was the reason for termina- tion — which also prevented him from receiving workers' compen- sation benefits. Further to his claim, he present- ed a note from his chiropractor stating he was initially assessed on June 2 and had "never been seen by me on Feb. 6, 2014." Chodha also claimed the com- pany's refusal to accommodate him was also discrimination. A WSIB re-employment claims manager found Times Kitchen had terminated Chodha's employ- ment "because of his injury and claim for benefits," which was a breach of the re-employment obligations under the Ontario Workplace Safety and Insurance Act. Times Kitchen was ordered to co-operate in the return-to- work process and offer Chodha's job back or face a $73,000 fine. Times Kitchen indicated it was prepared to re-employ Chodha and it developed a return-to-work plan with modified work duties — including assistance and reduced work hours — with consultation from the WSIB. However, Chodha decided he didn't want to return to Times Kitchen because of how he had been treated. But in refusing suit- able work that was available, his loss-of-earnings benefits were cut off by the WSIB. An appeals resolution officer overturned this decision, finding the work available wasn't suitable for Chodha and he was entitled to loss-of-earnings benefits up to Nov. 19, 2014 — the date Chodha slipped on some ice in a non- work-related accident and exac- erbated his injuries, from which he had almost fully recovered. 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 evidence the date was changed. ere was no indication of white- out and the date was in the same handwriting as the rest of the note. e tribunal accepted the chiropractor's statement he didn't see Chodha on Feb. 6, 2014, but it also found the note wasn't altered and the reason it was dated Feb. 6 was "a mystery." The tribunal noted that un- der the Ontario Human Rights Code, the issue was not whether the employer has offered suitable employment — first determined by the WSIB as yes and then by an appeals resolution officer as no — but whether the employer had accommodated the worker to the point of undue hardship. e code's definition of "dis- ability" also included "an injury or disability for which benefits were claimed or received under the in- surance plan established under the Workplace Safety and Insur- ance Act, 1997," said the tribunal. Times Kitchen was engaged with the workers' compensation process until the owner noticed the date on the note, said the tri- bunal. 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 the note was fraudulent and Chodha was try- ing to substantiate an absence from work with a note from several months before his job started. is belief in a fraudulent note was a "non-discriminatory expla- nation for the termination of the employment," said the tribunal. In addition, Times Kitchen was a small business and Chodha's medical restrictions significantly limited the work he could do, found the tribunal. It was reason- able to think there were no modi- fied 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," said the tribunal in dis- missing Chodha's human rights complaint. "e employer is not obliged to offer alternate work if there is no such work or if the em- ployee would not have been work- ing 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.). Jeffrey Smith is the editor of Canadian Employment Law Today. For more information, visit www.employment- lawtoday.com. Jeffrey Smith Legal View An assembler at a producer of kitchen and bathroom cabinetry filed a human rights complaint alleging his dismissal amounted to discrimination because of a disability. Credit: viki2win (Shutterstock)

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