BY Sheryl Smolkin, lawyer and journalist | August 21, 2012
A disabled truck driver who was on long-term disability for four years was still entitled to eight weeks of termination pay when fired.
This was even though Calvin Wright, who lived in Dryden, Ont. wasn’t fit enough to get his job back, which an arbitrator has ruled.
Wright worked for Ricci Trucking and Communications for 11 years until he was injured in a car accident in Nov. 2007. He was making $1,086 a week for a 40-hour work week and after the accident was unable to return to work. Beginning in 2009 he participated in a retraining and reintegration program offered by the Workers Safety and Insurance Board.
While Wright was never formally fired, the union grieved the circumstances. At a hearing, the company agreed he was effectively fired in November 2011 when he completed the re-training program and still was not well enough to return to his former job.
Ricci Trucking and Communications agreed that the Employment Standards Act requires the payment of termination pay based on regular wages when an employee is fired, but argued that because Wright had not worked for four years, his regular wages were actually zero. The company also maintained that Wright suffered no income loss because he received workers compensation benefits throughout the period of his absence.
The the arbitrator Robert Herman did not accept the company’s submissions because the Act says disabled employees are entitled to termination notice and pay provisions. He was also not concerned that Wright’s WSIB benefits plus his termination pay could add up to more than his previous normal wages.
Herman ordered the maximum eight weeks of termination pay based on his regular work week of 40 hours and the hourly rate he would have received under his collective agreement if he had been able to work during the period.
The union and the company previously agreed on an amount of severance pay owing to Wright which was not disclosed in the arbitrator’s decision.
Republished with permission. This article originally appeared on MoneyVille.