Injured employee intended to return to work after 16-month leave, court rules

Employer assumed request for letter stating there was no work for him while injured meant he wouldn't be coming back

A British Columbia employer wrongfully dismissed an employee when it replaced him and didn’t have a position for him after he finished a medical leave, the B.C. Supreme Court has ruled.

Kashmir Sandhu worked for nearly 20 years for North Star Mills Ltd., a small lumber manufacturing mill in Delta, B.C. He started in 1986 delivering firewood and eventually became a forklift operator and occasional supervisor. He was a valued employee with high seniority.

On June 4, 2005, Sandhu was in a car accident in which he sustained soft tissue injuries. He told North Star he wouldn’t be able to work for some time and requested a record of employment so he could receive benefits from the Insurance Corporation of British Columbia (ICBC). North Star supplied the record of employment and there was no further communication for a few months. In the fall of 2005, Sandhu called to update North Star on his condition but his employer made no efforts to contact him.

In November 2005, Sandhu asked North Star for a letter to the ICBC advising if there were any jobs for him that involved light duties. North Star responded with a letter saying there weren’t any jobs at the company that didn’t involve significant physical labour. North Star assumed this request meant Sandhu was unable to return to work at all because of his injuries. Up to that point, North Star had been covering Sandhu’s duties with other employees, but after the letter it began looking for a replacement.

In September 2006 Sandhu was feeling better and told North Star he would return on Oct. 11, but North Star told him he “could not just come back that way.” Sandhu was told the company would call him in a couple of days but he didn’t hear back.

After more repeated attempts to find out what was happening, Sandhu sent a letter to North Star asking whether it was going to continue his employment or offer him a severance package. On Nov. 17, he met with North Star’s owner, who became upset he was assuming he could push out his replacement. North Star offered a temporary position with special projects but Sandhu declined as it had no security. On Nov. 22, North Star sent Sandhu a letter saying it considered him to have quit and there would be no severance.

The court found Sandhu hadn’t at any time told North Star he quit and North Star hadn’t made any effort to find out his status while he was off work, even when Sandhu contacted his employer. It also found the request for the letter to the ICBC should not have been viewed as an intention to quit.

“Mr. Sandhu never told (North Star) that he would not be returning,” the court said. “Further, (North Star) did not ask Mr. Sandhu if he was ever coming back and did not tell him that his job was in jeopardy if he was unable to return by a certain date or that (it) intended to fill his position.”

The court acknowledged Sandhu’s absence of 16 months was a significant one. However, North Star was able to accommodate his absence with other staff without much trouble and only replaced him once it assumed he wasn’t coming back.

“Sandhu’s illness due to injury was temporary and it was not such as to put an end, in a business sense, to the business relationship which he had with North Star,” the court said.

The court awarded Sandhu 12 months’ notice. Because he found a new job on April 30, 2007, the award was shortened to seven months plus the costs of courses he took to qualifyfor his new position, for a total of $31,075.71. See Sandhu v. North Star Mills Ltd., 2007 BCSC 1222 (B.C. S.C.).

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