Employee’s complaint wasn’t layoff request (Legal View)

More likely employer wanted to avoid workers’ comp costs: Arbitrator
By Jeffrey R. Smith
|Canadian HR Reporter|Last Updated: 10/22/2013

An Ontario company wrongfully dismissed an employee who didn’t understand English very well when he signed a form stating he was resigning, an arbitrator has ruled.

Shahab Makholi, 42, was a welder for Daybar Industries, a manufacturer of fire doors and fire door frames in Mississauga, Ont. An immigrant from Iran, Makholi’s English was limited — he couldn’t read or write in English, but he could speak it to a certain extent.

Makholi was able to get by because there were other employees who spoke Persian and he could understand the diagrams and numbers for welding. At his previous jobs in Canada, he had also worked with others who spoke Persian.

When Makholi was hired by Daybar in April 2011, he was considered fully qualified and did not require training because he had spent eight years doing similar work at another company. However, though he could understand the diagrams and numerical specifications, he wasn’t able to read the English work orders — which caused his lead hand to get angry with him.

Though there were no discipline notes placed on Makholi’s record, the lead hand had to help him at times. The lead hand would yell and swear at him and Makholi sometimes complained to management, but nothing was done.

Employee suffered hand injury

On Jan. 2, 2012, Makholi fell down while working and injured his right hand. He told the lead hand it was sore but the lead hand told him to keep working. The next day, his hand hurt even more and he informed the lead hand again, who didn’t say anything. Makholi worked his whole shift.

On Jan. 4, Makholi’s hand was swollen, so he went to the hospital. It turned out the hand was fractured and he had to have a splint put on it.

Makholi arrived at work with the splint the next day and started performing his regular duties, but it was too painful. He was assigned alternate work and filled out accident report forms for the Workers’ Safety and Insurance Board (WSIB) — for which he needed help since he couldn’t read them.

Over the next month, Makholi performed alternate duties while his right arm was in a sling and his hand in a splint, including sweeping the floor, picking up debris around the plant and grinding and tapping holes for screws and other small parts.

During this time, he provided medical notes from his doctor that stated he was “unable to use right hand for work until further notice.”

On Feb. 2, 2012, Makholi met with a surgeon and was booked for surgery more than a year later — in March 2013 — to correct complications in his hand. The next day, he showed up for work without a splint and was asked to provide a doctor’s note confirming he could perform welding work. Makholi complied and he was returned to his regular duties.

However, those duties didn’t just include welding — there was cutting, grinding, drilling, tapping, glazing and door preparation, which Makholi couldn’t do because it hurt his hand. The lead hand told him he simply had to do it.

Makholi called the plant manager to tell him the lead hand was being rude to him and forcing him to do work he couldn’t perform.

Makholi said he didn’t want to work with that lead hand anymore and would prefer to work with another employee whom he had worked well with in the past.

The manager testified Makholi said he was feeling pressured by the lead hand and Makholi asked the manager during the call to lay him off. Makholi denied he ever asked to be laid off.

On Feb. 9, Makholi came to the manager’s office and told him again he was unhappy and couldn’t handle the pressure from his lead hand. They went to the production manager’s office, where the manager testified they asked Makholi if he wanted to be laid off. According to both, Makholi said yes. Afterwards, the plant manager claimed Makholi said to him: “You are on the hook (for my surgery).”

Later that day, the plant manager told the executive vice-president that Makholi wanted to be laid off, so two letters were prepared.

The first was a letter that stated “Daybar has determined that your employment shall cease effective immediately” and the second was a statement for him to sign saying Makholi understood his termination “shall be deemed a layoff without notice” and that he resigned “any and all recall rights.”

Because Makholi couldn’t read English, the lead hand explained in general terms what the letters said and told Makholi to sign the second letter. Makholi asked for a copy but was told no because “I don’t want this shit flying around everywhere.”

Makholi claimed he was told the second letter was simply a layoff paper. He was then taken to his work area to gather his things and escorted out of the plant. Daybar later issued a record of employment (ROE) stating the reason for the layoff was “shortage of work.” Two months later, it issued a second ROE giving “dismissal” as the reason.

Soon after, Makholi filed a grievance, claiming he was laid off because of a work-related injury and Daybar wanted to get rid of him. The WSIB conducted an assessment of his ability for other employment and determined his lack of reading and writing skills in English hurt his job search potential. Also, he remained unfit to perform work with his right hand.

Arbitrator believes Makholi

The arbitrator found Makholi did not ask to be laid off, either in the phone conversation with the plant manager or in his office. Much of this determination came from the fact the employer’s termination letters didn’t support this position.

The first letter stated it was Daybar who determined the end of Makholi’s employment and the second letter stated his employment was being terminated.

The only mention of resignation on Makholi’s part was that he resigned his recall rights, said the arbitrator.

“If (Makholi) was in fact resigning, which would be better for the employer than a termination, one would expect that (the plant manager) would have written the letters to very clearly state that (Makholi) was resigning,” said the arbitrator.

“More so, one would expect that (the manager) would have had (Makholi) at least attempt to write something in his own handwriting to this effect.”

It was also “very questionable” that management didn’t make a greater effort to explain the significance of the letters to Makholi, found the arbitrator.

And it was troubling that no union representative was present at the termination meeting, though the collective agreement required the union to be notified of any layoffs.

Daybar management testified there was no union steward appointed at the time, but there was one who was available that day. In fact, Makholi was told not to tell the union about what had happened and he wasn’t given a copy of the first letter.

In addition, Makholi’s filing of the grievance that sought reinstatement showed he didn’t intend to resign or ask to be laid off, said the arbitrator. It was most likely that he said he was having difficulty working with his lead hand and performing his regular duties with his injured hand.

It was Daybar who initiated the termination to be free of the headaches of modified work and the WSIB, said the arbitrator. Also, the two ROEs issued by Daybar were contradictory, and the first one that indicated a shortage of work was false, since Daybar hired welders shortly before and after Makholi’s termination.

Makholi was unjustly terminated by Daybar, found the arbitrator, and was entitled to reinstatement with compensation for lost income.

However, Makholi received WSIB benefits beginning shortly after his termination, so the arbitrator directed Daybar and Makholi to attempt to resolve the issue of compensation.

For more information see:

Daybar Industries Ltd. and USW, Local 4092 (Makholi), Re, 2013 CarswellOnt 10738 (Ont. Arb. Bd.).

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at jeffrey.r.smith@thomsonreuters.com or visit www.employmentlawtoday.com for more information.

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