Employee dismissed because of return-to-work request, not sick leave

Employment standards allowed dismissal after 19 weeks of sick leave, but employee was dismissed once she said she could return to work

An Ontario employer wrongfully dismissed an employee who wanted to return to work after several months of sick leave, an adjudicator has ruled.

Dinesh Sharma worked as an office clerk for Beacon Transit Lines, a regional carrier of fresh, frozen and dry goods based in Brampton, Ont. She was hired in October 2001 and worked until October 2012, when Sharma informed Beacon that she would be taking time off to heal an injured arm that had been bothering her for two years. She indicated she would be receiving workers’ compensation benefits, though she didn’t submit a claim until the day after. A week later, on Oct. 31, she submitted a form to Beacon that was required as part of her workers’ compensation claim.

On Nov. 8, 2012, Ontario’s Worker Safety and Insurance Board (WSIB) determined Sharma’s injury wasn’t work-related and rejected her claim. Beacon had told the WSIB it was not aware the injury happened in the course of her employment, just that she had said she had pain in her arm.

Beacon didn’t receive any further communication from Sharma until December, when she asked for a record of employment (ROE) so she could apply for employment insurance benefits. The company issued an ROE indicating Sharma’s expected date of recall as “unknown.” It continued to pay her health benefits during her leave.

Over the next few months, Sharma consulted a specialist, underwent elbow surgery and received physiotherapy. On March 6, 2013, she contacted Beacon to say she was able to return to work on March 11. She also provided a doctor’s note proclaiming her fit to work. However, the company informed Sharma it couldn’t reinstate her due to a lack of work — it claimed it had lost a major account during Sharma’s absence and its operations were affected. An ROE was issued indicating she couldn’t return due to a shortage of work.

Beacon felt it didn’t need to pay Sharma any severance pay because she had been absent from work for 19 weeks. Acccording to the Canada Labour Code, an employee could not be dismissed if on sick leave for less than 17 weeks.

The adjudicator found Beacon had an obligation to establish there was a lack of work that prevented Sharma from returning, but it didn’t provide any evidence that it lost a major account or didn’t have a position for Sharma.

In addition, the adjudicator pointed out that although the code allowed for dismissal after 17 weeks, Sharma wasn’t let go because of her sick leave length — she was dismissed because she asked to return to work, said the adjudicator.

“When that request was made she was told there was no work available and an ROE was issued the same day citing a shortage of work,” said the adjudicator. “The only logical conclusion is Sharma wanted to return to work and the employer did not want her back.”

The adjudicator found Beacon didn’t have just cause for dismissal and ordered the company to pay five weeks’ pay in lieu of notice, as required under the code. See Sharma and Beacon Transit Lines Inc., Re, 2013 CarswellNat 4148 (Can. Arb.).

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