You make the call
This instalment of You Make the Call features an employee who was fired shortly after returning to full duties after spending some time on modified duties.
Subarmani Pillay was a driver for a British Columbia location of United Rentals of Canada, an equipment rental company with locations across Canada. He was hired in October 2013 and signed a driver acknowledgment form that indicated employees must report any driving violations — in company or personal vehicles — or change in the status of their driver’s licence immediately to their supervisor.
On March 4, 2016, Pillay slipped and banged his knee on the ladder of his truck while working. He had to take some time off work and eventually received temporary wage loss benefits from WorkSafeBC, the province’s workers’ compensation authority.
Two days after his injury, Pillay was pulled over in his personal vehicle by police and charged with failure to provide a breath sample upon demand. He received a 90-day driving ban as a result. Pillay requested a review of the ban and it was temporarily stayed on March 24, so he could continue driving.
Pillay didn’t contact anyone at United until one week after his injury, despite the company making multiple attempts to reach him via telephone, email, and in person. He finally responded to a text from the company’s directory of safety on March 11 saying he would be back at work on March 16, but didn’t explain why he was absent.
However, Pillay didn’t show up for work on March 16, so United sent him a letter by registered mail indicating it considered him absent without leave and if he didn’t return to work by April 1, United would consider him to have abandoned his employment. As soon as he received the letter, Pillay called United and said he would return to work on April 1 “on modified duties.” However, Pillay once again failed to show up.
When Pillay didn’t arrive at work on April 1, United sent him a letter confirming that his employment was terminated for abandonment of position. United left the door open, however, saying if he contacted the company by April 6 and informed it of circumstances around his absence of which United wasn’t aware, he might be allowed back. The same day, the director of human resources contacted Pillay by phone and Pillay said he had medical information supporting his absence. As a result, he was given until April 4 to submit relevant medical information.
Pillay provided a doctor’s note stating he continued to experience pain and mobility issues from his knee injury. He then returned to work on April 7, performing modified duties until May 3, when his doctor cleared him for regular driving duties.
Before allowing Pillay to drive as part of his job again, United obtained a copy of his motor vehicle record and discovered his 90-day driving ban from March 6. Since Pillay hadn’t reported the ban or the temporary stay on it, and he hadn’t reported the results of a roadside inspection of his company vehicle in early February, United decided to terminate his employment effective May 7.
Pillay filed a human rights complaint, saying United dismissed him when he returned to work at full capacity after receiving benefits from a workplace injury, resulting in discrimination on the basis of physical disability.
You Make the Call
Was Pillay discriminated against because of disability?
OR
Did the employer have a right to terminate his employment?
If you said United could terminate Pillay’s employment, you’re right. The B.C. Human Rights Tribunal found Pillay likely could prove he had a disability from his knee injury, as he was off work, returned to modified duties, and received workers’ compensation benefits. It was also clear Pillay experienced adverse treatment in his employment — termination.
However, the tribunal found Pillay had signed an acknowledgment that he was aware of the rule that he was to report driving violations immediately, which he did not do after receiving the 90-day suspension of his driver’s licence in early March 2016. He also didn’t report the results of the company vehicle inspection in February — which may have been a relatively minor issue but was “very similar in nature” to his violation of his driver’s agreement a month later. These two similar violations provided a non-discriminatory reason for United to terminate Pillay’s employment, said the tribunal.
The tribunal also found United took a measured approach to Pillay’s absence from work, allowing him multiple chances to explain his absence and providing modified duties. It would make little sense for the company to accommodate Pillay for months and then terminate his employment based on his knee injury as soon as he was able to perform his full duties, said the tribunal.
“There is nothing other than the relative timing that could support a finding that Mr. Pillay’s knee injury was a factor in United’s decision to terminate his employment, and the whole of the information before me weighs heavily against supporting such an inference,” the tribunal said in dismissing Pillay’s discrimination complaint. See Pillay v. United Rentals of Canada, 2017 CarswellBC 3359 (B.C. Human Rights Trib.).
