No job was ever made available or offered to worker
An Ontario worker who was off work due to injury is entitled to severance pay under the collective agreement because no job was available to him, an arbitrator has found.
Karl Malenfant worked as a machinist for Ryam Lumber, a lumber company based in Toronto. Malenfant suffered a workplace injury in 2010 that led to multiple surgeries and ongoing medical issues that prevented him from performing his regular duties. Ryam accommodated him with less-intensive jobs, including that of a watchman, after he recovered from surgery in 2013.
The watchman position was believed to be suitable for Malenfant’s restrictions and he started out working alongside another employee. However, on the first day he worked alone in September 2013, a steel door blew back on his hand and injured him. He was unable to return to work.
In April 2014, the Ontario Workplace Safety and Insurance Board (WSIB) determined that Malenfant was approaching maximum medical recovery. He was able to perform light duties with permanent restrictions. Another WSIB report following surgery that October indicated he could work in a sedentary position.
However, Ryam didn’t contact Malenfant for a possible return to work and he remained off work until a WSIB return-to-work transition specialist contacted him in August 2016. Ryam advised that the only available work it had was for an electrician, which wasn’t suitable for Malenfant. The worker identified two jobs that he thought he could do, but these weren’t available.
Further assessments were conducted and in June 2017, Ryam indicated that it had offered work to Malenfant but the worker presented barriers and the “risk/reward factor is too great” to bring him back. The company’s position was that it had tried to accommodate Malenfant, but it had been unsuccessful.
Malenfant found a part-time job as a bus driver and contacted Ryam in September 2017 about severance pay to which he felt he was entitled. The collective agreement contained a provision stating that “an employee with three or more years of continuous service, for whom no job is available can, upon termination, elect to receive a severance allowance of one and a half weeks’ pay for each year of employment during his last period of continuous service (up to the date of termination)” with a maximum payout of 45 weeks.
Ryam denied the request because Malenfant had been off work on an active WSIB claim and had remained on the seniority list, so he hadn’t been terminated. The union filed a grievance, arguing that no job was available for Malenfant when he was ready to return to work, so his employment was effectively terminated.
The arbitrator noted that the collective agreement language should be taken in its “plain and ordinary meaning,” so the case boiled down to whether a job was available to Malenfant when he asked for his severance pay under the collective agreement.
The arbitrator also noted that Ryam needed more medical information in order to fully evaluate whether it could accommodate Malenfant, but the company never informed him that the barrier to him returning was a lack of medical information and it didn’t request additional information. Malenfant only knew that the jobs he suggested weren’t available.
“The important basic reality for this decision is that unless the employer, who controls the workforce, offers a job, it is not, in any realistic sense, available to an employee,” said the arbitrator. “The evidence is very persuasive that no job was ever made available or offered to Mr. Malenfant during the relevant period.”
The arbitrator found that there was likely confusion and miscommunication between Malenfant, Ryam, and the WSIB, but it was clear that Malenfant didn’t turn down any jobs because the company didn’t offer any. Since there was no job available, Malenfant was entitled to the severance allowance under the collective agreement.
Reference: Ryam Lumber and USW, Local 1-2010. Kathleen O’Neil — arbitrator. Michelle Henry for employer. James Fyshe for union. May 21, 2020. 2020 CarswellOnt 9763
