Returning to job after being injured?

[pokergod]

So I have a friend that got injured on the job. It was deemed that they couldn't do that job anymore and went on comp and trained for a new position.
When he went back to work, they won't give him a job in what he retrained for. Does anybody know if the employer are obligated to give him a job in his newly trained position?

 

[wazup]

Question for a labour lawyer, you'll get 20 different answers on here, none of which are correct, or a free call to the MOL.

 

[Keebler Elf]

They're not obligated. If they give him a job that pays less but he's capable of performing a higher paying job (up to what he made before), he may have an argument for constructive dismissal, especially if they're giving him "meaningless" work just to get him to quit.

Remember, no one is entitled to a job. It's a contractual relationship that either party can get out of by following the proper process (ie, giving notice or pay-in-lieu of notice, and severance if applicable). That said, he might have a discrimination claim if they're terminating him based on a disability.

If its a unionized environment it's potentially a completely different set of rules.

 

[colt]

There are re-employment obligations that are mandated by the Workplace Safety and Insurance Act. They are not complicated but a little lengthy to post and cover alot of different scenarios. They are laid out at section 41 here:

http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_97w16_e.htm#BK45

Keebler's post is a pretty nice example of a little knowledge (very little) being a dangerous thing.

 

[bazokajoe]

I'm not a lawyer, but from what I understand they can't fire you or lay you off because of an injury. Once you are able to return to work the company has to find work for you. Even if it's a different position.

 

[rhuarc29]

Just because he trained for a new position, doesn't mean that position is available. I don't believe they're obligated to take him back unless it's in some union contract.

 

[pokergod]

They tried to go back 2 years ago and the WSIB said they were able to go back to a newly trained position but the employer said that their restrictions didn't allow them to work in that position. They tried again this year and they were told they don't have any experience and not qualified.

 

[fuji]

I'm not a lawyer, but from what I understand they can't fire you or lay you off because of an injury. Once you are able to return to work the company has to find work for you. Even if it's a different position.

But only if you are medically able to do the job. If you are unable to do the job they don't have to make up work they don't have, so there is no guarantee.

Let's say you worked in a factory as a welder. You got injured and are medically unable to work as a welder (say, paralyzed from the waist down). You retrained as a computer programmer, a job you are medically able to do, but the factory doesn't employ any. You can't do the jobs they have, and they don't have the work you can do. They don't have to hire you.

On the other hand, if you were medically able to work as a welder again then they do have to give you your job back, or an equivalent one.

 

[Keebler Elf]

Keebler's post is a pretty nice example of a little knowledge (very little) being a dangerous thing.

Really? Enlighten me. Where's the section saying the employee MUST be given the exact same job that they were retrained on?

 

[Up North]

Really? Enlighten me. Where's the section saying the employee MUST be given the exact same job that they were retrained on?

I'm normally a lurker here, but Keebler your post is correct. There is exceptions but you can't list everything in the four sentences you posted.

 

[Up North]

How many employees are in the company and the payroll? That determines the steps the employer must take. If the employer has more than 20 employees...

There are several programs that assist an injured employees and even family members in the event of a death of the employee in returning to the workforce. An injury can have a wide range of definitions and the ESRTW program is run by the WSIB, WSIA and the employers. But if there is not a position available it does get complicated but essentially the employer is in the right and do not need to accommodate past that point. Keeping in mind this is the case of an injury, as a disability is more complicated and has another set of rules.

As a follow up to Keebler's post is that an employer can terminate employment without cause, provided the correct level of compensation is given. And there is nothing that the employee can do (there are exceptions) unless they were dismissed over a human rights issue.

Consult the MOL, but they will tell you that an employer can dismiss you because of the colour of your shoes provided you are compensated correctly. So if you were a 5 year employee you should receive 5 weeks in lieu of notice, 5 weeks severance, any outstanding vacation or your rate of vacation pay and typically another couple weeks to tempt you to sign the deal. The employee can pursue legal action but if the employer followed the above example the odds of winning the case are minimal and in most cases an indemnity agreement would be signed to reach this level of compensation.

 

[fuji]

You guys are actually wrong on the "anyone can be terminated with the right compensation" claim. Usually that is true. It is NOT true in the case of an injured employee returning to the same or equivalent job they were doing when they were injured. There is a statutory period during which they MUST be employed.

There are exceptions around cases where the injury leaves them unable to do the job, for smaller businesses, etc, and they can be terminated for cause if they misbehave, but in general the workplace that injured them has a legal requirement to employ them for a set period.

 

[Up North]

Fuji, I understand your point and agree. What I am trying to get across is there are exceptions and the information that the masses are generally ill informed.

Many variables come into play. Union vs non union, greater than 20 employees, time of injury before return to work and time since return. Also yes the employee should consult a lawyer for the best advice but it looks like it is not a simple case and often times it is not worthwhile to pursue something.

I believe in employee rights vs the employer but if substitute work was given at the same rate of pay, and how much time since the incident and if the employer has shown their duty to accommodate it is a difficult case to pursue.

 

[Keebler Elf]

And to clarify, if an employer tried to terminate someone's employment abruptly upon injury they would be opening up a whole 'nother can of worms. My statement was a general one that joe average employee has no special rights to a job just because he's joe average employee. If you get hurt on the job, you're in a different category.

I stand by my original statement that an employer is not required to give an employee the same job they re-trained them on. The employer can choose to give them alternate employment so long as its meaningful work and it's not a pay cut. This assumes they can actually do the work. Injuries get complicated but the driver is to maintain the employee's earnings/employment, not entitle them to a specific "job".