Worker on modified duties fired after rejected workers’ compensation claim

Worker claimed work-related injury but claim was rejected

This instalment of You Make the Call features a worker on modified duties who was let go after his workers’ compensation claim was rejected.

Darcy Novak was a truck driver for H & R Transport, a truck transportation company in Calgary. Hired in 2010, he performed various duties including yard driving, city driving, preparing trailers, setting up pike trailers, and general yard duties. Over the first couple of years with H & R, Novak had two instances of discipline — one regarding a missed day of work that was later cleared up after the absence was excused, and a reprimand for breaking a trailer seal. There was no written notice or follow-up for the latter.

In 2013, Novak was injured. He asserted his injuries were work-related and filed a claim with the Alberta Workers’ Compensation Board (WCB) in September. His doctor provided letters to H & R Transport stating that Novak would need to be provided with light duty work until further notice and he couldn’t sit for long periods of time. There was no indication of how long these restrictions would be in place or when Novak could return to normal duties.

H & R Transport offered Novak modified duties consisting of monitoring the security gate at the Calgary yard three days per week with office duties on a fourth day each week. His pay remained the same, and Novak started his modified work in mid-October.

Around the same time, Novak was given an improvement notice — the company's initial form of discipline — for not following process. There was no discussion on how to ensure it wouldn’t happen again or what the consequences would be if it did.

Once Novak started his modified duties, he spent all of his time in the guard shack monitoring trucks and trailers entering and exiting the yard. He didn’t usually have direct supervision in the guard shack and he didn’t work in the office.

A little while later, the WCB rejected Novak’s claim for benefits, finding his injuries were related to his age, not his work. When H & R Transport management learned of this, it met to determine Novak’s future with the company. Management had concerns with Novak’s performance, so it determined there was no good reason to keep him working modified duties if his injuries weren’t work-related. H & R only offered modified work plans to employees with active WCB claims.

On Jan. 6, 2014, Novak was asked to attend a meeting to discuss his modified work. However, at the meeting he was told verbally his employment was being terminated. A termination letter was then provided to him stating that “we have simply not seen the level of performance progression to justify a continuation of your employment.” Novak was given two weeks’ pay in lieu of notice plus two weeks’ severance pay.

You Make the Call

Was Novak wrongfully dismissed?
Was the employer entitled to dismissed him with the notice and severance pay provided?

If you said Novak was wrongfully dismissed, you’re right. The adjudicator found H & R Transport used poor performance as a reason for dismissal, but didn’t give Novak any warnings that his employment was in danger because of it. In fact, he had little supervision while performing his modified duties in the guard shack, so it would be difficult for the company to prove it had identified poor performance, said the adjudicator.

Though the notice and severance pay provided to Novak fell within the dismissal requirements under the Canada Labour Code, the adjudicator found H & R Transport acted in bad faith by unjustly dismissing Novak. In addition to dismissing Novak for unsubstantiated allegations of poor performance, the company filled his old position while he was on modified duties.

“The dismissal was arbitrary, and potentially discriminatory and unreasonable,” said the adjudicator in awarding Novak compensation for salary, benefits and bonuses for nine months — the period between his dismissal and the decision — equaling $36,617.76.

For more information see:

• Novak and H & R Transport Ltd., Re, 2014 CarswellNat 4276 (Can. Labour Code Adj.).

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