Workplace accidents can cause significant disruption in a person’s life. Aside from missing work, an injured employee may require accommodations to their job duties before returning to their pre-accident work.
In a recent decision from the Court of King’s Bench of Alberta, the Court emphasized the importance of communication between an employer and an employee, particularly when an employee is waiting to return to work. This decision also serves as an example to employers to be mindful of their conduct in similar situations to avoid allegations of wrongful dismissal.
Truck driver injured on the job
In Stonham v Recycling Worx Inc, the plaintiff employee was a truck driver for the defendant employer’s waste recycling company. The employee was hired to drive a large truck to collect and remove garbage from various properties. He had been hired in 2017 and was earning an annual wage of $54,000 at the time of the accident. The employee did not have a written employment agreement with the employer, but he did receive an “Employee Handbook” in 2019. He was asked to sign the document and initial each page, one of which contained the following resignation clause:
“Employees are considered to have resigned from the company if they are absent for more than three consecutive working days without contacting the office.”
On October 8, 2019, the employee was injured on the job when he fell off his truck while trying to remove a tarp. The fall resulted in serious injuries, including a fractured clavicle, which prevented him from performing his job as a Class 1 driver. He received worker’s compensation benefits for two weeks before returning to work on modified duties, which included clerical work in the employer’s office, which he did not enjoy.
Issues with modified duties and harassment allegations after employee returns to work
In January 2020, the employee told the employer that he had been bullied and harassed at work by other employees. He requested that the employer conduct an investigation and said he would contact Occupational Health and Safety directly if no action was taken. The employer conducted an internal investigation and found that the claims were unsubstantiated.
Days later, the employee’s doctor provided a note indicating that the employee required a two-week medical leave, which later extended into the summer of 2020. The employee received worker’s compensation benefits until July 2020. By this time, the employee was still not able to return to his pre-accident job and was still offered modified duties. He did not accept these duties, and he provided his employer with a doctor’s note advising that he would be able to return to his position as a truck driver on September 15, 2020.
There was no contact between the employer and the employee from August 14, 2020 until his termination in September 2020.
Employer claims employee resigned after not showing up for work
The employee’s planned date of return came and went without him reporting for work, as the employer had not confirmed his return. As a result, the employer provided the employee with a letter dated September 18, 2020, stating that his failure to report to work on September 15, 2020, was considered to be his resignation, as per the Employee Handbook, and enclosed a copy of the employee’s record of employment.
The employer believed that the resignation clause in the Employee Handbook was binding and thus, by not returning to work for three consecutive days, the employee had resigned. However, the Court determined that in order for a workplace policy to be implemented years after an employee begins, the employee must “outwardly assent” to the changes and there must be fresh consideration for employment. As such, while the employee did receive the handbook and sign it, the clause itself was found to be ambiguous. The document considers an employee to have resigned despite there not being a clear intent to do so. Although the clause reads more like a termination clause, it uses “resignation” instead. The Court found that the ambiguity of the provision, coupled with the employee’s lack of an opportunity to consider the acceptance of the clause, left it unenforceable.
The Court then asked if the employee could be considered to have resigned outside of the Employee Handbook. However, there was no evidence to suggest that the employee ever articulated an intention to resign. Instead, he had actually voiced a desire to return to his pre-accident duties earlier than planned.
Accordingly, the Court determined that the employer had wrongfully terminated the employee’s employment by issuing him the acceptance of resignation letter and not offering him any notice or payment in lieu of.
Contact DBH Law for Advice on Wrongful Termination Claims
The experienced employment lawyers at DBH Law rely on extensive experience and superior advocacy skills to provide our clients with strategic and responsive legal guidance in order to resolve their employment law disputes. Whether you believe you have been wrongfully terminated or have concerns about workplace safety, contact us online or by phone at 403-252-9937 to discover how we can help you.