Canadian Employment Law Today

©2018 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. We acknowledge the financial support of the Government of Canada, through the Publications Assistance Program (PAP), toward our mailing costs. GST #897176350 Published biweekly 22 times a year Subscription rate: $308 per year CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: customersupport. legaltaxcanada@tr.com Website: www.employmentlawtoday.com Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Media Solutions, Canada: Karen Lorimer Publisher/Editor in Chief: Todd Humber Editor: Jeffrey R. Smith E-mail: Jeffrey.R.Smith@thomsonreuters.com Sales Manager: Paul Burton Email: paul.burton@thomsonreuters.com Phone: (416) 649-9928 Emplo y ment Law Today Canad ad a ian www.employmentlawtoday.com How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 YOU MAKE THE CALL Was Pillay discriminated against because of disability? OR Did the employer have a right to terminate his employment? IF YOU SAID United could terminate Pil- lay's employment, you're right. e B.C. Human Rights Tribunal found Pillay likely could prove he had a disability from his knee injury, as he was off work, returned to modifi ed duties, and received workers' compensation benefi ts. It was also clear Pillay experienced adverse treatment in his employment — termination. However, the tribunal found Pillay had signed an acknowledgment that he was aware of the rule that he was to report driv- ing violations immediately, which he did not do after receiving the 90-day suspension of his driver's licence in early March 2016. He also didn't report the results of the company vehicle inspection in February — which may have been a relatively minor issue but was "very similar in nature" to his violation of his driver's agreement a month later. ese two similar violations provided a non-discrim- inatory reason for United to terminate Pil- lay's employment, said the tribunal. e tribunal also found United took a measured approach to Pillay's absence from work, allowing him multiple chances to ex- plain his absence and providing modifi ed duties. It would make little sense for the company to accommodate Pillay for months and then terminate his employment based on his knee injury as soon as he was able to perform his full duties, said the tribunal. " ere is nothing other than the relative timing that could support a fi nding that Mr. Pillay's knee injury was a factor in United's decision to terminate his employment, and the whole of the information before me weighs heavily against supporting such an inference," the tribunal said in dismissing Pillay's discrimination complaint. See Pil- lay v. United Rentals of Canada, 2017 Car- swellBC 3359 (B.C. Human Rights Trib.). Injured w orker fi red after returning to full duties THIS INSTALMENT of You Make the Call features an employee who was fi red shortly after returning to full duties after spending some time on modifi ed duties. Subarmani Pillay was a driver for a Brit- ish Columbia location of United Rentals of Canada, an equipment rental company with locations across Canada. He was hired in October 2013 and signed a driver acknowl- edgment form that indicated employees must report any driving violations — in company or personal vehicles — or change in the status of their driver's licence immedi- ately to their supervisor. On March 4, 2016, Pillay slipped and banged his knee on the ladder of his truck while working. He had to take some time off work and eventually received tempo- rary wage loss benefi ts from WorkSafeBC, the province's workers' compensation au- thority. Two days after his injury, Pillay was pulled over in his personal vehicle by police and charged with failure to provide a breath sample upon demand. He received a 90-day driving ban as a result. Pillay requested a re- view of the ban and it was temporarily stayed on March 24, so he could continue driving. Pillay didn't contact anyone at United until one week after his injury, despite the company making multiple attempts to reach him via telephone, email, and in person. He fi nally responded to a text from the compa- ny's directory of safety on March 11 saying he would be back at work on March 16, but didn't explain why he was absent. However, Pillay didn't show up for work on March 16, so United sent him a letter by registered mail indicating it considered him absent without leave and if he didn't return to work by April 1, United would consider him to have abandoned his employment. As soon as he received the letter, Pillay called United and said he would return to work on April 1 "on modifi ed duties." However, Pillay once again failed to show up. When Pillay didn't arrive at work on April 1, United sent him a letter confi rming that his employment was terminated for aban- donment of position. United left the door open, however, saying if he contacted the company by April 6 and informed it of cir- cumstances around his absence of which United wasn't aware, he might be allowed back. e same day, the director of human resources contacted Pillay by phone and Pillay said he had medical information sup- porting his absence. As a result, he was given until April 4 to submit relevant medical in- formation. Pillay provided a doctor's note stating he continued to experience pain and mobility issues from his knee injury. He then returned to work on April 7, performing modifi ed du- ties until May 3, when his doctor cleared him for regular driving duties. Before allowing Pillay to drive as part of his job again, United obtained a copy of his motor vehicle record and discovered his 90- day driving ban from March 6. Since Pillay hadn't reported the ban or the temporary stay on it, and he hadn't reported the results of a roadside inspection of his company ve- hicle in early February, United decided to terminate his employment eff ective May 7. Pillay fi led a human rights complaint, say- ing United dismissed him when he returned to work at full capacity after receiving ben- efi ts from a workplace injury, resulting in discrimination on the basis of physical dis- ability.

• Cover