Wednesday, February 1, 2012

Employer who terminated employees on LTD must pay severance

This summary was prepared by Jim Quail, Legal Director at the Canadian Office and Professional Employees Local 378.

The BC Court of Appeal today issued West Fraser Mills v USWA a decision regarding non-culpable absenteeism and human rights. 

The case concerned seven employees who had been on LTD for an extended period. The employer terminated their employment for non-culpable absenteeism, and a while later closed the mill. As a result of the termination the affected employees lost their entitlement to severance arising from the closure.

Arbitrator Emily Burke found that the terminations were motivated by the employer’s closure plans and intended to avoid having to pay the severance. While the terminations per se of the disabled employees would not have violated the Human Rights Code, the deprivation of entitlement to severance transformed them into discrimination on the basis of disability.  The arbitration award was issued in October 2010 and is available on CanLii.

The employer appealed to the Court of Appeal (appeals of the general law go to the Court under  s. 100 of the Labour Relations code; appeals based on the Labour Code or its principles go to the LRB under s. 99).  The Court unanimously upheld the award.

No comments: