Canadian Employment Law Today

No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, 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. We acknowledge the financial support of the Government of Canada, through the Publications Assistance Program (PAP), toward our mailing costs. GST #897176350 Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: Carswell.customerrelations @thomsonreuters.com Website: www.employmentlawtoday.com Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Carswell Media: Karen Lorimer Publisher/Editor in Chief: Todd Humber Editor: Jeffrey R. Smith E-mail: Jeffrey.R.Smith@thomsonreuters.com ©2016 Thomson Reuters Canada Ltd. All rights reserved. Emplo y ment Law Today Canad ad a ian www.employmentlawtoday.com How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 12 YOU MAKE THE CALL Was there just cause for dismissal? OR Was dismissal not justifi ed? IF YOU SAID dismissal wasn't justifi ed, you're right. e arbitrator recognized the manager's priority in establishing and main- taining a balanced and collaborative work environment and the worker's behaviour — acting in "an aggressively insolent manner, not only verbally, but physically" followed by storming out — was unacceptable and de- serving of discipline. However, the arbitrator noted that the worker went to the manager to apologize once she was back at work, showing that she realized the seriousness of her misconduct, but she wasn't given the chance as the deci- sion had already been made to terminate her employment. Given her responsibilities and the stress she was under, as well as the lack of any other serious issues in her employment record, the arbitrator found dismissal was an excessive response. e worker was ordered to give the man- ager a written letter of apology and the hotel was ordered to reinstate the worker eff ective the start of her fi rst weekly shift after she provided the apology. For more information see: • Osler Developments Ltd. and Uniform, Lo- cal 114 (Mctaggart), Re, 2016 CarswellBC 2881 (B.C. Arb.). Worker throws tantrum, employer throws worker out FOR THIS EDITION of You Make the Call, we have the story of an employee who let her temper get the best of her in front of her manager. e worker was employed at a liquor store at the Coast Hospitality Inn in Port Alberni, B.C. e worker had been with the hotel for three years and had fi ve years' previous ex- perience working at liquor stores. Her job at the hotel's liquor store involved ensuring there was an adequate supply of liquor at all times for service within the hotel and cus- tomers who wanted to purchase it onsite. In April 2016, a new manager came to the hotel, bringing some change with him. e manager tried to connect with staff mem- bers but some were resistant to the changes, including the worker. Around the same time, the worker was given additional responsibil- ity, leading to more paperwork and adminis- trative duties. She also felt the manager had been disrespectful towards her, claiming he once told her she "walked like a whale." In late June, the manager learned that 21 pallets of assorted liquors had been ordered for the July 1 long weekend. He felt this was a little too much as it might be diffi cult to fi nd space to store it all. He spoke to the employee who had placed the order — who was a close friend of the worker — to ask what was hap- pening to warrant such a large order. How- ever, the employee was busy so the manager decided to talk to her later. He had no other issues with the employee as he felt she was a good employee. Later that week, the manager found the employee who had placed the order with the worker in the cooler. He explained he was concerned about the number of pallets ordered as well as the prices being charged. e worker disagreed, as there was a large baseball tournament taking place in Port Alberni and many of the players and specta- tors were guests at the hotel. e discussion became "animated and loud," and while he questioned the employee who had placed the order, the worker shouted "bulls--t" at him. e manager was stunned. e worker followed this up by shouting "you are a f---ing idiot," crumpling up a piece of paper and throwing it at him while stand- ing a few feet away. She then turned away and walked out the door. e manager later testifi ed he was shocked and stunned, saying it was the "most embar- rassing moment of his life." He reported the incident to the union shop steward and his bosses, who were concerned with the work- er's language and actions in the workplace. After thinking about it for a few days, the manager decided to terminate the worker's employment. e worker was off for a few days due to the work schedule, and when she returned, she came to the manager to apolo- gize. However, before she had the chance, the manager stopped her and told her he could no longer trust her. He gave her a let- ter the next day stating she was being termi- nated for "attempting to undermine the au- thority of management" by interrupting the manager, swearing at him, throwing paper at him, and ignoring attempts to de-escalate the situation. e letter concluded that the worker was guilty of insubordination and harassment.

• Cover