Worker can’t shoulder regular duties after injury

Claimed injury was still affecting but had been cleared for full duties by doctors

This instalment of You Make the Call features an injured employee who claimed discrimination based on a disability.

Basant Brar was a dock worker for Damco Distribution Canada, an international warehouse and distribution company in Delta, B.C. Brar’s job involved offloading, sorting and redistributing boxes of merchandise for shipment.

On Sept. 4, 2009, Brar injured his left shoulder while loading boxes in the warehouse. He filed a claim with WorkSafeBC and had his physician complete a Damco form that outlined his level of fitness for work and functional limitations. Damco modified his duties and he didn’t have to miss any work.

Brar had regular assessments on his fitness for work and his duties had to be further modified. On March 2, 2010, WorkSafeBC informed Damco Brar would be put into an occupational rehabilitation program for six weeks, which would be followed by a graduated return-to-work plan.

The rehabilitation ended on April 23, 2010, but Brar complained he still had significant pain in his shoulder and said he could still only perform light duties. The medical information Damco had indicated Brar had recovered enough to perform his full duties and the company also received a letter from WorkSafeBC that said Brar was fit to return to work without limitations. Damco recommended to Brar that he should take small breaks to ice his shoulder and use lifting techniques he had been taught.

On April 27, Brar didn’t show up for work and didn’t contact his supervisor. Brar later explained he was trying to get an appointment with his doctor. Damco requested him to have his doctor complete a fitness for work form but Brar said his doctor refused and didn’t provide the doctor’s name.

Damco later received a level of fitness form that stated Brar could perform most of his regular duties. However, Brar insisted he was in too much pain to do anything beyond labeling boxes. Damco told Brar it expected him to perform the full duties he was medically cleared to perform and if he could not, he should provide additional medical evidence.

Feeling stressed, Brar went to see his doctor and then a psychiatrist, who diagnosed him with depression. He didn’t show up for work over the next four days and made no contact with Damco.

On May 3, Damco sent Brar a letter telling him that he must respond immediately with information supporting his continued absence or he would be disciplined, including possible termination, but it received no response.

On May 6, Damco terminated Brar’s employment for not reporting for duties or explaining his absence from work, essentially abandoning his job. Brar filed a human rights complaint claiming discrimination on the ground of physical disability.

You Make the Call

Did Damco have grounds for dismissal?
Did Damco have to do more to accommodate the injury?

If you said Damco had grounds for dismissal, you’re right. The tribunal found the company adequately accommodated his injury with modified duties for several months. It also acted reasonably given the medical information it had clearing Brar to perform most of his regular duties. If Brar’s shoulder was still preventing him from performing those duties, he should have met the request for new medical information supporting that claim, particularly since he was taking time off work, said the tribunal.

The tribunal found Damco provided a “credible non-discriminatory explanation” for the decision to consider Brar to have abandoned his position. He was absent for from work for at least three straight days without proper notification or acceptable reasons — outlined in the collective agreement as a deemed termination of employment.

The tribunal also found Brar should have been aware of the proper process to report his absences. Although he was diagnosed with depression, there was no evidence it prevented him from notifying his employer or that it affected his knowledge of the proper notification procedure. See Brar v. Maersk Distribution Canada Inc., 2012 CarswellBC 1966 (B.C. Human Rights Trib.).

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