Worker said his doctor told him to stay off work; employer offered modified work
This edition of You Make the Call features a worker who was at odds with his employer on when he should come back to work after surgery.
Edward Westhaver was a maintenance worker at a Nova Scotia lumber mill operated by Harry Freeman and Sons. He was hired in January 2011 and his supervisor viewed him as being a good worker.
In March 2015, Westhaver injured his elbow at work. He notified his supervisor about the injury and received workers’ compensation for the missed time off work.
The mill’s return-to-work policy stipulated that the company would accommodate modified duties as transitional work for workplace injuries. Participation was mandatory depending on the employee’s physical capabilities, and the onus was on the employee to fully co-operate.
Westhaver’s supervisor asked him about his ability to do various modified duties and Westhaver never refused any of the work assigned to him. The modified duties involved work such as visual preventative maintenance, inspecting and changing saw blades, and monitoring the computer that kept track of the wear and tear on the blades.
Westhaver also developed carpal tunnel syndrome (CTS) in his right hand. A surgeon told him in May 2016 surgery could help with the CTS, so it was scheduled for the following month. The surgeon provided a note saying Westhaver needed two weeks off before the surgery. Westhaver called the mill to report his absence and the doctor faxed a note on May 25.
The mill’s occupational health and safety (OHS) co-ordinator and Westhaver’s manager contacted Westhaver to say they had work that could accommodate his hand injury — involving mostly sitting or standing — and there was no medical evidence to support his absence for two weeks before the surgery. However, Westhaver maintained his surgeon had put him off work.
The company contacted the Workers' Compensation Board (WCB) to discuss the situation and the WCB said it didn’t see any reason why Westhaver needed to be off work for two weeks prior to his surgery. Westhaver agreed to return to work for the week before his surgery.
Westhaver was assigned to do firewatch but also found himself climbing and lugging things around, as well as preventative maintenance. On firewatch, he sometimes had to jump over machines and use his arm, which he felt was a safety issue.
Westhaver had his surgery on June 14. He didn’t call in after his surgery to report his absence, though his surgeon put him off work for six weeks. His supervisor tried to call him, but the number he had was outdated and he wasn’t able to contact him.
On June 29, Westhaver’s family doctor faxed a medical note dated June 12 indicating Westhaver would be on sick leave until Sept. 19. The OHS co-ordinator looked up recovery times for CTS on the Internet, which seemed to be one to one-and-one-half months, and wondered why Westhaver would need three months to recover.
The company contacted Westhaver to offer him modified duties, but Westhaver said he needed to consult his doctor. He also asked for a record of employment (ROE) for sick benefits, but the company said there was no reason to issue one.
On July 14, the company sent Westhaver a letter saying it had modified duties available within his abilities. It also said it needed an abilities form completed by his doctor or, alternatively, a letter of resignation after which it could issue an ROE.
There was no response so on Aug. 3, the company issued Westhaver an ROE indicating he had quit. Westhaver filed a labour standards complaint for dismissal without notice.
You make the call
Did Westhaver quit his job by not co-operating with return-to-work efforts under company policy?
OR
Did the company wrongfully terminate his employment?
If you said the company wrongfully terminated Westhaver’s employment, you’re right. The Nova Scotia Labour Board found that Westhaver produced a note from his doctor following his surgery that placed him on medical leave and when the company spoke to him he said he had to consult his doctor regarding his ability to perform modified duties. Nothing in his actions or comments would lead a reasonable person to assume he intended to quit his job, said the board.
In addition, the company didn’t set a timeline for providing the completed abilities form from his doctor. When the company sent the ROE, Westhaver had an appointment scheduled for two weeks later — there was no indication he failure to respond before then was an act of wilful disobedience. And though Westhaver requested a record of employment, it was to access sick benefits, not end the employment relationship, said the board.
The board also found Westhaver had no discipline on his record and was considered a good employee. The company never told Westhaver his job was in jeopardy or that it considered him to be in violation of the return-to-work policy. As a result, dismissal was too extreme, even if there was misconduct on Westhaver’s part, said the board.
The board determined Westhaver was dismissed without cause and ordered the company to pay him appropriate statutory pay in lieu of notice.
For more information see:
• Harry Freeman and Son Ltd. and Westhaver, Re, 2017 CarswellNS 348 (N.S. Lab. Bd.).
