In reinstating an injured employee who had been terminated contrary to section 239.1 of the Canada Labour Code, arbitrator Slotnick, in Kingsway Transport (2012), 218 L.A.C. (4th) 321, accepted the union’s contention that Section 239 of the Code was subject to section 239.1 of the Code. He summarized the union’s position as follows:
… the union points to Section 239 of the Code, a general section applicable to sick leaves of any cause (that is, not only work-related) and which contains provisions barring dismissal for illness or injury, but which places a 12 week limit on absences to which the bar applies. Section 239 states that its provisions are subject to Section 239.1, set out above. The union argues that these two sections read together indicate a clear intention to provide enhanced protection under the Code for workers whose absence is due to work-related illness or injury by eliminating, for them only, any time limit after which the employer can dismiss or stop benefit and pension contributions.
The employer had also argued that the employee’s termination was due to his inability to perform any work as contrasted to his continuing absence. In dismissing this contention, the arbitrator stated:
I cannot agree with the company that [the grievor’s] absence is due to his inability to perform work rather than due to the work-related injury. In my view, there is no distinction to be made … His inability to perform work is the direct result, and solely the result, of his work-related injury.
In considering the meaning of Section 239.1 of the Code, arbitrator Slotnick stated:
In my view, Section 239.1 indicates a clear intention to protect the employment status and benefits of workers who are injured on the job. Those protections are not subject to a time limit, as are the protections in Section 239 applicable to injury or illness not originating in the workplace. Simply put, the employer cannot dismiss a worker “because of absence from work due to work-related illness or injury.” Further, subsections (5) and (7) of Section 239.1 address the employee’s health and disability benefits, pension and seniority during this type of absence. Despite the awkward structure with the use of the word “accumulate”, those subsections clearly intend to preserve an employee’s access to pre-absence health and disability benefits, as well as requiring continuation of employer benefit and pension contributions during the absence. In addition, pension credits and seniority continue to accrue. I agree … that these statutory provisions must override any restrictions in the collective agreement …
On the issue of eventually terminating the employee’s employment, the arbitrator stated:
I agree with the company that Section 239.1 is not an open-ended guarantee of employment status and health benefits. Circumstances can change. For example, the medical condition of an employee can improve to the point that they can return to their old position or be accommodated in a new one. Or, someone in [the grievor’s] situation might find a new job with a different employer. In those circumstances, the absence from work cannot be said to be due to work-related illness or injury, so the requirements of Section 239.1 would not have been met.