Canadian Employment Law Today

December 4, 2019

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL ©2019 HAB Press Limited, a subsidiary of Key Media KEY MEDIA and the KEY MEDIA logo are trademarks of Key Media IP Limited, and used under license by HAB Press Limited. CANADIAN EMPLOYMENT LAW TODAY is a trademark of HAB Press Limited. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photo - copying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. GST/HST#: 70318 4911 RT0001 Emplo y ment Law Today Canadian www.employmentlawtoday.com Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE info@keymedia.com www.employmentlawtoday.com 20 Duncan St. 3rd Floor, Toronto, ON M5H 3G8 President: Tim Duce Editor: Jeffrey R. Smith Email: jeffrey.smith@keymedia.com Copy Editor: Patricia Cancilla Sales Manager: Paul Burton Email: paul.burton@keymedia.com Phone: (416) 649-9928 Marketing Co-ordinator: Keith Fulford Email: keith.fulford@keymedia.com Phone: (416) 649-9585 HAB Press Ltd. Revenge consumes worker's time, then his job THIS EDITION of You Make the Call fea- tures an employee who paid the price for having a vendetta against someone who rat- ted him out. Blair LaPlante was an arborist for the City of Vancouver, hired in 1999. e city had a zero-tolerance policy for employees who came to work while under the influence of drugs or alcohol. In March 2016, a city employee with whom LaPlante was close friends was killed in a workplace accident. In October 2016, a female employee com- plained to the city's parks board that LaPlan- te had sent her inappropriate text messages. When the board investigated, LaPlante said that he had been having marital problems. e parks board referred him to the city's employee and family assistance program but also issued a written warning. In early March 2017, LaPlante was ob- served at work with the smell of alcohol on his breath. In an investigative interview, LaPlante denied it was true. e parks board told him that there was support available if he needed help, but LaPlante denied having any problem. He wasn't disciplined, but the city gave him a letter of expectation that he was not to report to work under the influ- ence of drugs or alcohol. Two months later, the parks board learned that LaPlante had consumed a beer at lunch with co-workers, including the one who had complained about the text messages. LaPlante said he had only had part of one beer and he thought he could do so while on his unpaid lunch break. He said he wouldn't do it again. Soon after the meeting, a parks board em- ployee received several text messages about a "rat" who would be exposed if their state- ment wasn't recanted. e board found out the messages had been sent by LaPlante's wife without his knowledge. An investigation meeting was held on May 23, 2017. When asked about the text messag- es, LaPlante said he had just found out about them, but he then said he found out the night his wife sent them. e board also told him he had been overheard saying "I'm ordering a beer, there's a rat in our midst and I'm going to expose them," but he denied it. e board then asked LaPlante if he had been involved in actions intended to intimi- date anyone who reported unsafe work prac- tices and he replied that he only ordered the beer "to see if they'd run to management." At the end of the meeting, LaPlante said he had felt upset and wanted to "flush out the rat" because he knew the co-worker who had re- ported his texts was there. He said he made a judgment error and was sorry but "people are running to you guys about every little thing." Another meeting was held on June 15, 2017 to discuss the text messages. LaPlante and his union representative indicated that the matter could be "tied to the death of the co-worker over which many were grieving, possibly not in the best way." However, the parks board terminated his employment for his dishonesty during the investigation into his attempts to "flush out the rat" and breaking workplace rules. e termination letter stated he was "repeatedly dishonest at our meetings, until you were provided with evidence in the contrary, at which point you were strategically honest with your admis- sions. As a result, I have lost all trust in you as an employee of the parks board." LaPlante then admitted he had an addic- tion to alcohol and would like his termina- tion rescinded so he could "access rehabili- tation benefits from the parks board under the self-disclosure provision" of the collec- tive agreement. When asked why he hadn't mentioned it before, he replied that it was embarrassing. ree months later, the union provided an independent medical examination (IME) report that stated he didn't have an alcohol addiction. LaPlante acknowledged that he didn't have an addiction, but he had been diagnosed with anxiety and depression stemming from his friend's death. However, the IME also said there was no evidence of a psychiatric condition that could impact his judgment or behaviour at the time of his misconduct. In November 2017, LaPlante provided a letter from his family doctor that stated he had "acute stress and depressive disorder" due to his friend's death and that the city should accommodate him. It also said he had suffered from mental health issues for the "last couple of years." Emplo y ment Law Today Canadian www.employmentlawtoday.com YOU MAKE THE CALL Should the termination stick? OR Should the employee be reinstated and accommodated? IF YOU SAID the termination should stick, you're right. e tribunal found the termi- nation was ultimately because of LaPlante's attempts to thwart the investigation into his vendetta against the co-worker and not re- lated to a mental disability. e tribunal found that while the doctor's note indicated LaPlante had psychological issues after the death of his co-worker, there was no medical evidence that his dishonesty was related to a mental disability. Although LaPlante claimed he had an alcohol addic- tion and mental health issues, he didn't claim it affected his decision-making when he was dishonest with his employer, said the tribunal. "It was ultimately not Mr. LaPlante's con- duct in relation to the incidents but his con- tinued acts of dishonesty when confronted with them that drove the decision to termi- nate his employment," said the tribunal. For more information see: • LaPlante v. City of Vancouver, 2019 BCHRT 183 (B.C. Human Rights Trib.).

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