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Debra, Lawyer
Category: Canada Law
Satisfied Customers: 101019
Experience:  Lawyer
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Alberta. Fact 17 yr service Delivery drive. Took 3 months off

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Alberta. Fact 17 yr service Delivery drive. Took 3 months off for Knee Surgery. He is 67 years old. We feel he cannot do the job and can go on to WCB. What can I do to mitigate my exposure?
Thank you for your question.

Before I begin I want to explain a bit about how the site works.

It may be that I will find that I need to gather further information from you. As well, it's quite possible that you may feel the need to ask me additional questions for further clarification.Please do not worry that you will be charged additionally if I ask you questions or if you need to ask me questions. That is not at all how the site works.

As well, please understand that as a careful lawyer I will always give you an honest answer even if the answer is sometimes not what you were hoping for.

Finally, as we go through the process please do not feel rushed if I ask you a question. You are always free to take your time to gather more information before you post back. As well, please understand that even after you rate me the post will not lock and you could always come back for further clarification if you think of something a bit later on down the road.

Did he harm himself at work?

And, can you accommodate him in some way, perhaps giving him another type of job?
Customer: replied 4 years ago.

Knee surgery was not work related.

No other work


WCB is only for work-related injuries.

It may be that you mean long-term disability benefits.

The law is that you have a duty to accommodate your employees with disabilities unless the disability will cause you to undergo undue hardship.

So you are going to have to prove that he cannot do the job and that you cannot accommodate him or you are leaving yourself open to a claim of discrimination.

If you don't want to be sued from wrongful dismissal then you have to provide him with reasonable notice or pay in lieu of notice but you will still be leaving yourself open to complaint of discrimination.

Generally, in determining what is reasonable notice Courts look at several factors including the length of time this employee worked for you, his age, his position, the likelihood of finding new employment etc.

At the high end, if he were in a managerial position, the Court would likely order one month's notice or pay in lieu of notice for each year of employment. If he were not in a managerial position the Court would order somewhat less

In my view, the most prudent next step you could take is to consult with an employment lawyer face to face. Because of the potential claim for discrimination and also given the fact he's worked for you for so long there is a lot at stake for both you and this employee.

You can contact the Law Society and use their Lawyer Referral Service. You will be given the name of a lawyer and can consult with the lawyer and the first half hour will be free.

The number is:

1-800-661-1095 or
403-228-1722 in Calgary

Let me know if you need any further clarification.
Debra and other Canada Law Specialists are ready to help you
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Thanks and take good care!