Injured worker wins $48,000

A Lunenburg Foundry employee who fell more than six metres, fracturing bones in his right arm, injuring his hand, knee and back, has won $48,042 in compensation after the Nova Scotia Labour Board determined he wasn’t accommodated properly at his former workplace.

Devon Dauphinee, who worked as a welder for the foundry for more than 22 years, “was terminated without just cause,” according to the decision awarding him a year’s pay in damages.

Dauphinee successfully appealed a decision from the province’s director of labour standards indicating he wasn’t entitled to pay in lieu of notice as the company couldn’t accommodate him “without experiencing undue hardship.”

Injuries from Dauphinee’s 2009 workplace fall “contributed to his arm giving out ten years later,” said the labour board decision dated Jan. 26.

“The injury left him unable to weld with his right arm.”

Dauphinee went on Workers Comp and started physiotherapy to regain his ability to work, said the decision.

“He returned to work on July 15, 2020, on an ease back plan working four hours a day and performing light duties as well as practicing welding with his other arm,” said the labour board.

“He did some COVID cleaning and stock room duties.”

‘LIGHT WORK’ ONLY

A job site analysis “indicated that it was unlikely that Mr. Dauphinee could return to his previous job,” said the decision.

“The job was deemed to be heavy to very heavy work. Mr. Dauphinee was limited to light duty work.”

Lunenburg Foundry & Engineering Limited “determined there was no light duty work to be provided to Mr. Dauphinee as a permanent workplace accommodation. As a result, Mr. Dauphinee was terminated on April 14, 2021.”

The former welder argued he was unjustly terminated.

OTHER JOBS

Dauphinee told the board he could have worked as a welding supervisor or painter for the foundry.

“Alternatively, there were a number of light duty jobs that could have been bundled to accommodate him including cleaning, firewatch and stockroom duties.”

The foundry countered that it’s a “small business and most of the positions require a person to be able to perform heavy duty work in order to perform the job safely.”

That includes the jobs Dauphinee said he could do, according to the foundry.

‘PROHIBITIVELY EXPENSIVE’

“In order to paint, the complainant would be required to climb and paint in high locations and required fall arrest training,” it argued.

“To undertake firewatch, the complainant would be required to go into small, contained spaces carrying a fire extinguisher. There was no full-time cleaning or stock room positions and to accommodate (Dauphinee) doing those jobs would be prohibitively expensive and an undue hardship on the (company.)”

The labour board found that it was unlikely Dauphinee would be able to return to welding, and that the company “fulfilled the accommodation process with respect to that particular position.”

But it could have gone further, said the board.

‘MUST BE EXPLORED’

“Once it was determined that (Dauphinee) could not continue his job as a welder, a permanent accommodation in another position or other job functions must be explored.

It is not sufficient simply to consider the disabled employee for job openings that may arise.”

The board didn’t buy the foundry’s “undue hardship” argument.

“The employer’s evidence does not establish that they were near the point of undue hardship which would entitle them to end their efforts at accommodation.”

‘DO WHAT’S RIGHT’

The foundry – which is in the process of selling its shipyard to the province – has a month to decide whether it will appeal the decision, said John Kinley, a director of the company who heads a subsidiary that manages properties.

“We haven’t made a decision yet,” Kinley said Friday.

“We want to do what’s right. We totally respect Devon and the position he’s been put in. And, also, we respect the board’s reasoning behind the decision. We don’t fully agree with it, but we definitely respect it.”