Canadian Employment Law Today

Canadian HR Reporter, 2021 Canadian Employment Law Today Canadian Employment Law Today | | 7 More Cases More Cases shift, although Way-Patenaude and her hus- band would not have taken the job without a guarantee that they would always be on the same schedule. Within a year, Way-Patenaude felt Clean Harbors was discriminating against her on the basis of her age and gender because other employees who were male or younger were given wage increases that she didn't receive. On July 28, 2013, she filed a complaint with the Alberta Human Rights Commission. Verbal warning, suspension followed complaint Shortly afterwards, Way-Patenaude and her husband went on vacation. They were sched - uled to return to work on Aug. 30, but their travel was delayed. Way-Patenaude called her supervisor to notify him that they wouldn't be at work on Aug. 30, to which the supervisor responded "OK, get back safe." The supervi - sor didn't say anything about discipline, so she didn't make alternate arrangements to get back in time. Clean Harbor's attendance management policy (AMP) stipulated that all absences must be pre-approved, but it stated that culpable absenteeism was when an em - ployee failed to provide adequate notice of absence or failed to call in to report their ab- sence. They were able to return to work two days later, on Sept. 1. At the end of their shift, they were called into a meeting where the supervi- sor gave them each a letter stating that they were being verbally warned for a "late/no show, and/or sick leave" for Aug. 30. Way-Patenaude found the meeting stress- ful and was shocked at the warning. She was angry that the supervisor didn't warn her about the discipline and called him her "so called supervisor" in a raised voice. Her hus- band was also upset and raised his voice in the meeting. Clean Harbors suspended both of them pending an investigation into their conduct in the meeting. Ultimately, they weren't dis - ciplined, although the company referred to its "Disruptive Behaviour Policy." They were paid for the three days they were suspended while the investigation was conducted. A few days later, Clean Harbors contacted Way-Patenaude and informed her that both she and her husband were being transferred to different crews and would be on different schedules — they would no longer have the same days off and they sometimes would be working opposite shifts. The company ad - vised that all the crews were being reshuffled to accommodate "business need." In this case, one of the drivers resigned and two oth- ers were on leaves of absence, requiring a re- distribution based on driver competencies established through prior work performance and interactions with them. The operations manager said that he had taken into account the fact that the Paten - audes were a couple, but he felt the needs of the business took priority in this case. The new schedule was implemented after one at- tempt to reorganize the employees with no revisions. Way-Patenaude filed another human rights complaint, alleging retaliation for her first complaint and differential treatment under the AMP. The change to the shift schedules had a significant effect on Way-Patenaude and her husband, turning "our lives bottom up." In addition to not being able to spend time with family on days off together, she was worried about her husband being home alone when she was working due to various medical con - ditions he had. She went on medical leave due to stress in October 2014. The tribunal noted that Way-Patenaude went on vacation shortly after filing her initial complaint, so her verbal warning and three- day suspension at the end of August 2013 came on one of her first days back at work after she submitted it. This "coincidental tim - ing" led to an inference that both were linked to the discrimination complaint, said the tri- bunal. The tribunal found that the AMP's refer- ence to culpable absenteeism made reason- able for Way-Patenaude to believe she simply had to call in to report her absence without discipline and understandable why she was surprised to be disciplined. However, the tribunal also found that the response of the supervisor when Way-Paten - aude called in to report her absence due to her travel delay wasn't that of approval but more of an acknowledgement. Way-Paten- aude's absence wasn't entirely from matters beyond her control, as she acknowledged that she could have made alternate arrange- ments in order to arrive in time if necessary. From the company's perspective, the verbal warning served to clarify to the Patenaudes that the expectation going forward was that the standard was "absent due to blamewor - thy reasons," not simply whether the em- ployee provided notification of the absence. This gave the warning a rational connection to Way-Patenaude's conduct. The tribunal also determined that the three-day suspension wasn't related to the hu - man rights complaint. The evidence indicated Way-Patenaude was upset and acted out dur- ing the disciplinary meeting, and Clean Har- bors was entitled to investigate potential mis- conduct. There ended up being no discipline for that misconduct and both Way-Patenaude and her husband were paid for the three days of work they missed. Vague reasons for shift change However, the tribunal found that there was no good-faith and legitimate reason for the shift change. It pointed out that the schedule change came after management conducted its investigation into the conduct of Way-Paten - aude and her husband, so they were aware of the discrimination complaint by then. Email evidence showed that the operations manager knew of the complaint by Sept. 4, a couple of weeks before the shift change was imple - mented. In addition, one of the leaves of ab- sence used to support the shift change ended in October 2013 and no one in management could identify when the employee resigna- tion happened. Clean Harbors couldn't provide a cred- ible explanation for the change — the refer- ences to a resignation and leaves of absence were vague and the company implemented its first draft of the reorganization without considering alternatives. In addition, the judgment of driver competency was at least partly based on the manager's anecdotal encounters with drivers rather than docu - mented skills. "Clean Harbors' explanation for both the timing of as well as the changes to the crew as- signments and shift schedules themselves was implausible and self-serving," said the tribu- nal in finding that the change was a deliberate response to the discrimination complaint. "At the same time, it was clear that Clean Harbors was aware that the crew assignments and shift schedules were important to [Way-Paten - aude] and that a change to them would have negative consequences for her." The tribunal dismissed the parts of the retaliation complaint related to the verbal warning and suspension but upheld the part related to the shift change. Clean Harbors was ordered to pay $10,000 in damages. For more information, see: • Way-Patenaude v. Clean Harbours Energy and Industrial Services Corp., 2020 AHRC 41 (Alta. Human Rights Trib.). « from ALBERTA WORKER'S on page 1 Worker and husband transferred to different shifts after outburst CREDIT: SIMONKR iSTOCK The timing of the verbal warning and suspension made it reasonable to infer they were related to the worker's complaint.

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