A labour arbitrator recently held that theCanada Labour Code prohibits a federalemployer from terminating an employee who had not worked for 21 years.
In 1989 the grievor suffered a seriousinjury at work and had not worked since. For 21 years, he had retained hisstatus as an employee, and the employer made monthly contributions to continuehis health benefits, and to his pension plan. However, in January 2011, theemployer terminated the grievor’s employment, resulting in an end to hisbenefits. The union grieved the termination.
The employer claimed that the grievor’s contractof employment had been frustrated because there was no possibility that the grievorwould be able to work in the future. The union relied upon Section 239.1 of theCanada Labour Code which states thatno employer shall dismiss an employee because of an absence from work due to awork-related illness or injury. The union argued that Section 239.1 supersededthe common law doctrine of frustration and prohibited the employer fromdismissing the grievor.
The arbitrator upheld the grievance andreinstatement the employee. The arbitrator concluded that Section 239.1 appliedand the grievor’s termination was without just cause because he was dismissed asa result of his absence from work due to work-related illness/injury. The employerwas ordered to reinstate the grievor’s benefits and pension payments, as well asreimburse the grievor for any expenses incurred that would have been covered bythe benefits plan had the grievor’s enrollment continued.
KingswayTransport v. Teamsters Local Union 91, C.L.A.D. No. 124
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