Worker dismissed for negligence after workplace accident, didn’t return phone calls
The Manitoba Labour Board has dismissed the appeal of a worker who claimed that he was wrongfully terminated while on a medical leave following a workplace accident caused by his negligence.
The worker was a tractor trailer end dump driver for S & J Construction, a Winnipeg based company specializing in excavation, gravel, and concrete. He was hired in June 2021.
On Feb. 24, 2022, the worker was assigned to a construction site where he was to load mud from the excavation area into a truck and dump it in a designated area on the other side of the site. He had already worked at the site for a few weeks, so he was familiar with it.
The worker was assigned a different trailer than is usual one. He conducted the regular, required safety checks and determined that it was safe to operate.
The worker’s truck was one of 17 trucks operating at the site, all loading and unloading in a rotation at the designated area. However, it was a cold day that made the roads slippery, so S & J brought in extra machines to help even out the designated dumping area. The designated area was excavated and levelled throughout the day, although there were still problems with the weather that made the terrain difficult to deal with.
An employee was not liable for fire damage caused by ‘ordinary negligence,” the Nova Scotia Supreme Court ruled.
Truck tipped over
In the afternoon, the worker dumped a load of mud over the side of a hill that was outside the designated area. He noticed that his back tires were lifting off the ground and the trailer was making an unfamiliar noise. When half of the load was emptied, he felt the truck’s weight shifting, so he tried to steady the truck with the steering wheel. However, the truck continued to shift and eventually flipped onto its side.
The worker was helped from the truck and taken to the construction hut, where he met with the safety officer. He told the safety officer that he didn’t have any injuries requiring immediate medical intervention, but he might not be fine later. They went to the office and completed insurance forms and the worker maintained that he felt fine. He was then allowed to go home.
S & J’s owner conducted and investigation, including interviews of the foreman on site and the driver of an excavator who witnessed the incident. He discovered that the worker had dumped a load of mud in an unauthorized location where the ground was uneven and unsafe. The owner decided to terminate the worker’s employment the same day for acting negligently and breaching the trust needed to drive the large trucks in a safety-sensitive environment.
The next day, the worker started feeling discomfort from the accident. He didn’t wake up in time for his shift and didn’t call in sick over the next two days. He saw his doctor, who placed him on medical leave until Feb. 28. He faxed a doctor’s note to the company on Feb. 17.
A BC arbitrator ordered an employer to pay back wages it deducted to recover the cost of equipment that a worker lost.
No contact from worker
During the worker’s absence, C & J tried to call the worker by telephone to inform him that his employment was terminated and he could pick up his final paycheque at the office. They called a total of four times between Feb. 15 and March 4, but the worker didn’t return any calls. They didn’t text him because of the sensitivity of the message.
On March 15, the company mailed the worker’s final paycheque to him. Before the worker received the paycheque, he learned from the Manitoba Worker’s Compensation Board that he had been terminated effective Feb. 14. He texted C & J claiming that he had not received any phone calls, but he didn’t receive a reply.
The worker filed a claim for unpaid wages, arguing that he was terminated while on a leave protected under the Manitoba Employment Standards Code – the code allows employees to take up to three days of unpaid leave each year for various reasons including their health, and requires employees to provide “as much notice as is reasonable and practicable in the circumstances.”
S & J maintained that the worker was terminated for negligent and unsafe work on Feb. 14, 2022, and it was unaware that the worker was injured or had requested medical leave when it made the termination decision on the same day.
The province’s employment standards division found that the worker was not terminated for taking or while on a protected leave and that the worker wasn’t entitled to any wages. The worker then appealed to the Manitoba Labour Board.
Employers are permitted to terminate an employee on medical leave without cause for business purposes, but there are risks, says an employment lawyer.
Onus on worker
The board noted that the onus was on the worker to demonstrate that he was on a protected leave when he was fired. However, the worker did not advise S & J that he was taking a protected leave or any details as to why. The evidence was that the company decided to terminate him on the same day, before the worker even realized that he had lingering effects from the incident. In addition, the worker didn’t seek medical treatment until three days later, the board said.
The board found that the evidence showed that S & J tried to contact the worker on the phone multiple times. The worker denied receiving a call, but the company logged each attempt. The worker also didn’t try to contact S & J himself to explain his absence from work over the next few days or inform it of his injuries.
The first contact from the worker was the medical note, which was delivered well after the decision to terminate, said the board.
The board determined that the worker was not on a protected leave at the time of his termination. Although the worker didn’t know about the decision, C & J made reasonable efforts to reach him without success and the worker made no effort to communicate his situation or his intention to take a leave, said the board in dismissing the worker’s appeal.
A worker fired while on medical leave was wrongfully dismissed, an Alberta court ruled.
