Arbitration Award

The entry to the Copper River Inn in Fort Frances, Ontario.

Arbitrator cites discrimination and failure to accommodate in decision to award damages to terminated employee

In November, the Local Union received a favourable arbitration decision that put much deserved money back in the pocket of an employee who had been injured at work and fired.

A bit about the case

As a new employee at the Copper River Inn in Fort Frances, the Grievor had been scheduled at a rate of three eight-hour shifts per week. But on their fourth day of employment, the Grievor fell on a wet floor in the employer’s facility which resulted in a workplace injury.

After filing a WSIB claim, which the WSIB accepted, the Grievor spent several weeks in recovery before returning to work. The WSIB paid the worker their lost wages for that time. Upon returning to work, the Grievor presented a WSIB Functional Abilities Form (FAF) specifying restrictions such as no extended standing, walking, lifting, etc. The Grievor completed their first full eight-hour shift but began experiencing pain halfway through.

The employer then continued to schedule the worker even more hours than they worked previous to the injury. It was not a schedule the employee could maintain given the amount of pain they experienced and the Grievor asked to return to three eight-hour shifts per week.

While enduring pain throughout their shifts, the Grievor continued to report to work and carry out their job which required interaction with the public on a regular basis.

Following a few weeks of too many shifts spent in pain, the Grievor contacted the WSIB for direction on what to do. They WSIB instructed the Grievor to go to physiotherapy. Following that appointment, the WSIB report from that time indicated that the Grievor required modified four-hour shifts, in addition to a number of physical restrictions, in order to return to work.

The Grievor took this form to the employer and, following that, the employer scheduled a modified four-hour shift as per the form. The Grievor was then advised, however, that their next shift would be an eight-hour one.

Several days later, the Grievor received two phone calls from the employer within a half hour of each other. The first call was to inquire about an error they alleged the Grievor made at work, and the second to terminate their employment for poor work performance.

The Grievor was confused as to why they would be terminated for poor work performance when no one had brought any complaints to their attention before that call. Further confusing the situation was that the employer denied receiving the WSIB forms containing the Grievor’s restrictions and modified work requirements.

Not only did the employer have full knowledge of the injury the employee suffered, as it had happened on their property, but the employer’s denial of having the documents doesn’t negate its responsibility to ensure they have the necessary information to accommodate the injured worker.

The Decision

Arbitrator Randall sided with the Grievor’s testimony and recollection of the events that took place and awarded $20,000 in damages.

The decision stated that the employer’s failure to do its part to inquire with and obtain any information on the employee’s disability was egregious. With respect to the employer’s claim that it fired the employee because of poor work performance, Arbitrator Randall found:

“The Grievor had to put up with being portrayed as lacking charisma and flair in circumstances where [they were] fighting through pain that the Employer willfully turned a blind eye to because it breached its procedural duty to accommodatethe Grievor.”

“This case was so clearly a termination based on discrimination, and the employer completely abandoned its responsibilities under the Workplace Safety & Insurance Act,” said President Haggerty. “It was a long road for this arbitration but it was worth the time and effort to achieve this substantial outcome for the Grievor.”