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Employee Fired while Awaiting Surgery Awarded $25,000
Legal Affairs - Workplace Today®

The Canadian Human Rights Tribunal has ordered a transport company to pay $25,000 to a former driver for terminating him while he was on long-term disability leave awaiting knee surgery.

The 37-year-old man had worked for the company for nearly nine years. He drove between locations in Nova Scotia, transporting goods from warehouses to retail outlets. He was often required to move heavy items such as snow blowers and kitchen appliances.

About eight years into his employment, he started experiencing pain and discomfort in his right knee. He had trouble going up and down ramps while loading and unloading goods. He advised his boss, the regional manager, that he was going to be off work for a couple of weeks because of his knee and that it was not work-related.

The man saw various doctors. An orthopedic surgeon told him he needed surgery and that it would be done within about six months. The man told the regional manager this, and then filled out the forms to receive short-term disability. When the short-term benefits ran out after 17 weeks, he applied for and received long-term disability benefits.

During the man’s absence, his manager asked a federal government employee what the company’s obligations were to the driver under the Canada Labour Code. The employee said the company had to keep the position open for 12 weeks and would not owe any severance if the man were terminated.

The manager provided the driver with a questionnaire about his health status. The driver replied that his surgery date was 6 to 12 months away, though in another question he said he had no surgery date. He said that he expected to be off work for 6 to 12 months.

The manager felt these responses were not acceptable since no surgery date had been set, and he needed a full-time replacement for the driver to meet business demand. The manager sent him a termination letter saying that the long-term absence of an employee causes “operational difficulties and a reduced level of service to the customer.” The termination was effective three days from the date of the letter.

The man filed a complaint with the Canadian Human Rights Commission, alleging discrimination based on disability. The case was heard by a tribunal.

The tribunal said that the manager never directly contacted the driver to check on his health and never tried to accommodate him by finding him lighter duties or modified work. The company’s health insurer told the company that the man wanted to return to work after his surgery, as long as he did not have to do any heavy lifting.

After he was fired, the man tried to get his surgery scheduled as soon as possible, but his surgeon told him it was assigned by priority. The man found another surgeon a four-hour drive away and was able to get his surgery more quickly because there was a cancellation.

After his surgery and physiotherapy, the man found a similar job transporting goods for another retailer that did not require any lifting. It was at the same pay and he called it a “perfect” job.

The tribunal noted that at least four other truck drivers working for the same company had been off work between one and four years on long-term disability and workers’ compensation benefits, but none of them were terminated or asked to provide surgery dates and return dates. The manager admitted that were it not for the man’s knee problem and inability to return to work within six months, he never would have been terminated.

The tribunal found that the company did discriminate against the man by not considering if he could return to work and by not accommodating him with lighter duties while he awaited his operation. “The complainant did everything he could to try to get a surgery date. He had no control over the scheduling of his surgery,” the tribunal stated.

The tribunal ordered the company to pay the driver $15,000 for pain and suffering. “The sudden termination of his employment was a cruel blow to a person already suffering from the pain and difficulties of his injury,” the decision read. “It caused him, for a considerable amount of time after the termination, to suffer anguish, depression and despair.”

The company was ordered to pay the man an additional $10,000 for willfully terminating him while on medical leave, since “there was no evidence of any record of poor performance of misconduct by the Complainant in the past.”

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