Layoffs due to shortages of work can be painful for everyone involved, including those who lose their jobs, employers, and even employees who are fortunate enough to retain their positions. While making a decision on who to lay off may not be an easy one, the Alberta Human Rights Tribunal issued a decision recently which highlighted the importance of not factoring in things such as disability and family status.

The injury

The employer was a mechanical contractor, while the employee worked as a second-year apprentice plumber. He was hired on November 16, 2011. The location where the employee was working was the Husky Energy Sunrise oil sands development, which was located just over 100 kilometers Northeast of Fort McMurray. The worksite had medical services available, including physicians, nurses, and paramedics.

On April 15, 2012, the employee injured his ankle while stepping onto uneven ground when exiting a building down a flight of stairs. He was taken to the hospital where he was x-rayed. The x-ray found “soft tissue swelling centered over the lateral malleolus, suggestive of a possible lateral collateral ligament strain injury.”

As a result of the accident, the employee signed a modified work offer, which provided him with modified duties. This offer would run until April 21, 2012. After the conclusion of that period, a doctor suggested that the employee decrease his walking for another 3-5 days. A couple of additional extensions saw the employee continue his modified responsibilities until he was given the go ahead to resume normal duties on April 29, 2012.

Unfortunately ,the employee’s injury was slow to heal. A follow-up x-ray in June 2012 revealed the employee’s ankle was still injured, and a doctor advised that he was not capable of working. He began physiotherapy after this assessment. By July 5, it was discovered that he had a high ankle sprain and would need six weeks to recover. However, the ankle was slow to heal and by September 2012 his doctor thought it might take another six months.  He continued physiotherapy until May 31, 2013, over one year after his accident.

The layoff

However, during this time, the employee was laid off. The layoff occurred on May 15, 2012. The employer claimed that a shortage of work was the main reason for the layoff, but added that the employee’s poor job performance was a factor, as was his lack of a family to support (the employee was single and without children).They claimed the employee’s ankle injury was not a factor in his being laid off, claiming they had no knowledge of it at the time the decision was made.

The employee, meanwhile, took the position that his physical disability as well as his family status were factors in his being laid off.

The tribunal agreed with the employee, finding that the employer could offer no evidence of poor performance on the part of the employee. Furthermore, both physical disability and family status are protected grounds under Alberta’s human rights legislation. They ordered that the employer compensate the employee for wages lost from the time the layoff occurred until he found new employment, a period of 13 weeks.

The team at HMC Lawyers has over 130 years of cumulative litigation experience. W offer insightful legal advice to employers and employees about matters relating to employment standards, human rights and requests for accommodation. Our Employment Team helps employers and employees address challenging workplace disputes with a minimum disruption to relationships wherever possible. We strive to resolve matters through mediation and other formal methods of alternative dispute resolution to minimize costs, but where necessary, are tireless trial advocates on behalf of our clients. 

To make an appointment with one of our Employment Team members, call 1-800-480-3534 or contact us online. We represent employers and employees in Calgary, throughout Alberta, and across Western Canada.