More human rights ‘frustrations’

May 01, 2016 - by: David Wong 0 COMMENTS

by David G. Wong

Traditionally, when an employee’s absenteeism was excessive and there was no reasonable prospect of  returning to work in the foreseeable future—as long as there was no contractual term providing otherwise—a Canadian employer could discharge the employee for non-culpable absenteeism or treat the employment contract as having been frustrated. This would bring the employee’s employment to an end. read more…

Disability benefits claimant abandoned job

January 03, 2016 - by: Shane Todd 0 COMMENTS

by Shane Todd

Disability claims management is never easy. It is particularly difficult when employees refuse to provide enough medical information to substantiate their absence and entitlement to benefits, while also refusing to return to work. The decision in Betts v. IBM Canada Ltd., 2015 ONSC 5298, provides guidance to employers dealing with such cases. It confirms that failing to comply with the terms of a disability plan or to return to work may constitute job abandonment. read more…

Employers must have a reasonable basis for engaging in employee surveillance

August 17, 2014 - by: Clayton Jones 0 COMMENTS

By Clayton Jones

When confronted with information that an employee may be abusing paid sick leave, it is only natural for an employer to want to investigate further. One way in which employers may do this is through the surreptitious surveillance of the employee. However, such surveillance is of limited value unless the employer will be able to rely on the surveillance in a subsequent legal proceeding. read more…

Employee privacy in the accommodation process

February 09, 2014 - by: Keri Bennett 0 COMMENTS

By Keri Bennett

We all know employees across Canada have an obligation to participate in the accommodation process. That extends to providing proper medical documentation. If an employee fails to provide such documentation, surely he or she could be disciplined. Not necessarily.

Notwithstanding the employee’s obligation to participate in the accommodation process, an Ontario arbitrator has ruled that an employer was not entitled to discipline an employee who failed to consent to the release of personal medical information to support repeat absences over a span of eight years. But there can still be consequences to the employee. read more…

Objective medical proof not necessary for accommodation duties to arise

November 10, 2013 - by: Marc Rodrigue 1 COMMENTS

By Marc Rodrigue

Under human rights legislation across the country, Canadian employers have a general duty to accommodate employees who are unable to perform their work for a period of time because of illness or disability to the point of undue hardship.

This may require an employer to grant an employee a leave of absence from the workplace. But what if the employee doesn’t provide medical documentation to justify such an absence; surely you could deny the leave? Not necessarily, according to an Ontario arbitrator in TRW Canada Ltd. and TPEA (Lockhart). read more…

Indefinite protection for federal employee disabled by work-related injury

November 11, 2012 - by: Nicola Sutton 0 COMMENTS

by Nicola Sutton

When the employment relationship becomes impossible to perform because of a factor outside the control of a Canadian employer or employee, the employee’s employment can be terminated by virtue of frustration of contract. When an employee won’t be able to return to work because of injury or illness, the same applies. But not so for federally regulated employers such as banks, airlines, inter-provincial trucking companies, etc.

According to the recent decision of Kingsway Transport v. Teamsters, Local Union 91, the frustration argument is no longer available for those employers when the employee’s inability to return to work is because of a work-related injury or illness. read more…

Excessive Absenteeism: When Enough is Enough

June 03, 2012 - by: Keri Bennett 0 COMMENTS

By Keri Bennett

Employers everywhere often wonder when an employee’s “innocent” or no-fault absences reach a level that warrants termination. Can these employees ever be fired? Yes, is the answer from one New Brunswick labor arbitrator in Canadian Union of Public Employees, Local 1252 and Vitalité Health Network.

Facts
A nurse at a hospital in New Brunswick was excessively absent over a 24-year period. The employer made repeated efforts to address her absenteeism, including ongoing letters and meetings under an attendance management program. The employee’s random yet continual absences caused a negative impact on patients, her coworkers, and the employer. The employer issued a written reprimand and raised the threat of suspension and dismissal from 2005 to 2010.

read more…

Aspects of Attendance Management Program Ruled Discriminatory

November 22, 2010 - by: David Wong 0 COMMENTS

By David Wong

Attendance management programs themselves aren’t discriminatory — they just need to be carefully designed and properly applied. Such is the latest conclusion in continuing litigation between Coast Mountain Bus Company Ltd. and the Canadian Auto Workers, a battle over an attendance management program covering transit operators in the Greater Vancouver region in British Columbia.

In May 2009, we commented on the British Columbia Supreme Court’s decision in which the court largely accepted the employer’s program.

read more…

Accommodating Disabled Workers – Undue Hardship in Hard Times?

October 25, 2010 - by: Chuck Harrison 0 COMMENTS

by Chuck Harrison

When warehouse worker Dan Tomasella was injured in a car accident in 2008, his employer did the right thing: Maersk Distribution accommodated his graduated return to work and provided him with light duties.

Maersk stepped up again when Tomasella’s shoulder injury was further aggravated. But when the economy took a turn for the worse, Maersk laid him off because of his disability. A labor arbitrator has now found that the employer’s human rights “duty to accommodate” substantially changed when its business was sideswiped by the crashing economy.

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Terminating Long-Absent Employees: ‘Frustration’ Isn’t Just a Legal Term

September 13, 2010 - by: Northern Exposure 0 COMMENTS

By Gulu Punia and Kyla Stott-Jess

When an employee is absent because of long-term disability, employers naturally wonder how long they must wait before the employment contract has been “frustrated.” If it has, the employment contract can be terminated. According to the recent Ontario decision of Naccarato v. Costco Wholesale Canada Ltd., however, the question isn’t “how long” but rather “what is the prognosis?”

read more…

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