Injured BC worker’s claim for ESA termination pay fails

Worker didn't quit but couldn't perform regular employment duties

Injured BC worker’s claim for ESA termination pay fails

A British Columbia worker who was off work for more than a year due to an injury did not quit his job, but his inability to perform his job duties ended his employment without any termination pay entitlement, the BC Employment Standards Tribunal has ruled.

The worker was employed with Phaser Fire Protection, a fire protection system supplier in Surrey, BC. His main job duties were that of a sprinkler fitter, installing fire suppression systems for clients.

In late 2019, the worker suffered a workplace injury and had to go off work, with his last day of work on Oct. 19. He remained off work and, in February 2021, WorkSafe BC informed Phaser that the worker “had permanent disabilities that prevented him from performing his pre-injury job (without modifications) in the foreseeable future.” WorkSafe BC also noted that the worker had an underlying and pre-existing degenerative condition in his cervical spine and the injury occurred because his job duties had aggravated the condition.

WorkSafe BC concluded that it was unlikely that the worker could carry out his regular job duties without re-injuring himself.

On Feb. 23, 2021, Phaser advised the worker that his extended benefits and company cellphone were being cancelled immediately. The worker took this to mean that his employment was being terminated.

The worker filed a complaint alleging wrongful dismissal and claiming more than $12,000 as compensation for length of service under the BC Employment Standards Act (ESA). Phaser countered with the argument that the worker had quit or otherwise abandoned his employment.

Unforeseeable event

A delegate of the Director of Employment Standards investigated the complaint and determined that the worker did not quit employment. However, the delegate found that the worker was not entitled to any compensation for length of service, because the ESA did not apply to an employee “employed under an employment contract that is impossible to perform due to an unforeseeable event or circumstance.”

The delegate found that the worker’s injuries constituted an unforeseen event that made it impossible for the worker to perform the employment contract related to his pre-injury job of pipefitter, and the ESA exemption applied. The worker’s complaint was dismissed.

The worker appealed the decision to the tribunal on the basis that the delegate failed to observe the principles of natural justice and erred in law. He argued that his primary job was not a pipefitter but rather a foreman, and pointed out that he was fully able to return to work as demonstrated in new employment as a foreman with similar duties, which he was performing at the time of the delegate’s investigation and was overlooked.

The worker also argued that Phaser should have made a greater effort to accommodate his restrictions.

Primary job duties

The tribunal found that the delegate didn’t overlook the worker’s new employment and specifically stated that the worker provided no evidence that he could perform the specific job duties that were restricted by WorkSafe BC. Although the worker argued that he was not primarily a pipefitter, the evidence indicated that much of his job duties involved that occupation, the tribunal said in finding that there was no “palpable and overriding error” in law related to the worker’s actual job duties.

As for accommodation, the tribunal noted that the duty to accommodate arises under human rights legislation and there was no such duty under the ESA. If the worker wanted to make a human rights claim, he would have to file a human rights complaint, not an employment standards one, said the tribunal.

The tribunal noted that the delegate’s finding that the worker didn’t quit would normally entitle the worker to compensation for length of service under the ESA, but the it was reasonable in light of the evidence to conclude that the worker’s employment ended due to an unforeseeable event or circumstance.

The worker’s appeal was dismissed and the delegate’s decision upheld. See Greg Dornian (Re), 2023 BCEST 12.

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