Canadian Employment Law Today

April 26, 2017

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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PM40065782 Emplo y ment Law Today Canad ad a ian www.employmentlawtoday.com April 26, 2017 Fired daycare manager wins $45,000 from uncaring employer A BRITISH COLUMBIA employer violated a termination clause in its employment contract with a worker it fi red for cause after one year of service and must pay her $45,000 in termination pay and aggravated damages, the B.C. Supreme Court has ruled. Sian Davies came to Canada from Wales in 1988 and worked as a nanny. In 2006, she started a home daycare business called Daisy Chain and over the next few years obtained an early childhood education (ECE) certifi - cate and a diploma in kindergarten and pre- school teaching. In 2015 Davies met Derek Du, who owned a business call Shineray. Du wanted to es- tablish a daycare facility as part of Shineray's business and was looking for a qualifi ed per- son who could manage it. Du off ered Davies and her Daisy Chain business the position of manager of the daycare on March 16, and Davies signed it three days later. e contract — set to run for fi ve years and end on July 1, 2020 — called Davies an independent contractor, but referred to her "employment and duties," which involved setting up the daycare program, curriculum and daily operation structures, recruiting staff , creating a marketing strategy, and set- ting up safety procedures and regulations. e contract also set targets for Davies to meet, such as achieving a certain amount of annual net profi t by September 2016 and increasing that to a certain amount in subse- quent months. e contract stipulated that if Davies failed to meet targets "in any consecutive two years during the initial term, the agree- ment may be terminated by Shineray." It also allowed Shineray to terminate the agreement "with or without cause by pro- viding you with three months' notice of cancellation. In such an event, the company shall have no further liability or obligation to you and you will have no action, claim or demand against the company at common law or under statute." Comments about shooting manager constitute workplace violence Worker's denial and suggestion that co-worker fabricated story hurt his credibility BY JEFFREY R. SMITH AN ARBITRATOR has upheld the dismissal of a Toronto transit worker who voiced his displeasure with management with comments to a co-worker about committing violent acts. Mark Davis, 54, was a fare collector for the Toronto Transit Commission, working in ticket booths at stations on the city's subway and rapid transit lines. He was hired in 1989 and worked as a bus driver before becoming a fare collector. In early 2014, Davis was suspended for two days after an incident in which he sges- tured with his middle fi nger at a customer with whom he was having a dispute. e customer photographed his gesture and complained to the TTC about it. In addition to the suspension, the TTC re- quired Davis to attend sensitivity training on CREDIT: DAYOWL/SHUTTERSTOCK Overworked, sick employee wrongfully dismissed for not doing his job pg. 3 Work piled up for employee on modifi ed work after staff cuts Employer job requirements deemed excessive in foreign worker case pg. 4 Employer claimed there were no qualifi ed Canadian candidates, but offi cer found requirements were too high and excluded existing Canadian workers with Colin Gibson WORKER DENIED on page 6 » WORKER TOOK on page 7 » ASK AN EXPERT pg. 2 Confi dentiality clauses in settlement agreements

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