‘Nick’ not so jolly over employment laws
Elrond was tobogganing on the weekend when his sled crashed and he broke his thumb.
He went to see Nick, his boss, on Monday morning to show him his splintered thumb and explain that the doctor said Elrond was going to have to be off work for at least six weeks. There was no way he could use the carving tools and hammer he was required to use in his job at the toy factory.
Nick was not happy. The busy season was coming and he needed all hands on deck, but there was nothing he could do about it. Nick phoned his employment lawyer and learned that the human rights legislation in Nunavut was basically the same as everywhere else in the country. He had to accommodate Elrond’s disability and absence to the point of “undue hardship.” Nick had to hold Elrond’s job open and allow him to heal. He could not hire a permanent replacement. That meant Nick was going to have to spend time and money training a replacement for Elrond’s unique nutcracker-carving role, and production would slow down.
Seven weeks passed before Elrond was healed enough to return to work. Elrond’s replacement, Arwen, had taken well to his new position. He was actually faster at the job than Elrond ever was and produced just as good a product.
Nick phoned his employment lawyer again to see if he could bring Elrond back to a different job, even though Elrond had been in charge of carving the nutcrackers for 53 years. His employment lawyer, as they do, again let him down.
Nick learned Elrond had an absolute right to return to his pre-disability position. If Nick failed to do that and the issue was litigated, it would be up to Nick to prove his case. Effectively, he would have to persuade the judge that after 53 years, even if Elrond had never been injured, he would have suddenly changed his responsibilities. Arguments about Arwen’s manufacturing superiority would not help.
To make matters worse for Nick, the doctor’s note said Elrond could only work six hours a shift for his first two weeks back, which would further slow production. Nick had to accommodate this graduated return-to-work program prescribed by Elrond’s doctor. The best he could do was put Arwen in Elrond’s work station for two hours a day once Elrond went home.
It soon became evident that Elrond was not as quick at his job as he had been before the injury and production was falling behind. Nick had to give Arwen overtime to keep up with demand.
Nick phoned the lawyer back to get a clearer understanding of what “undue hardship” actually meant. The lawyer explained that while some hardship could always be expected in accommodating an injury and absence, in order for that hardship to be “undue,” it had to require an action involving significant difficulty and/or expense.
If Nick was running a small, five-person operation, the production loss and extra expense might come close to being an undue hardship. Nick, however, employed hundreds of workers in his toy manufacturing facility, and a bit of overtime and inconvenience were not going to be an undue hardship. Arwen’s job rights and benefits were not being affected since he was a floater in the plant anyway and appreciated the overtime. Workplace safety was not being affected. There were no undue hardship arguments to be made.
Nick eventually resigned himself to the fact that he would just have to be patient with Elrond’s recovery, and soon enough, things went back to normal. Nick learned that being patient was far better than an embarrassing human rights complaint.
Happy holidays.
This article was originally published by The Hamilton Spectator.
