Canadian Employment Law Today

September 27, 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 September 27, 2017 Falsifi ed post-incident drug test worse than having marijuana at work Marijuana in worker's system not evidence of impairment, but worker's dishonesty in trying to falsify test results just cause for dismissal BY JEFFREY R. SMITH AN ALBERTA company had just cause to dismiss a worker who failed a drug test not because she had marijuana with her on the job but instead because she tried to falsify her test results, an adjudicator has ruled. Dawn Gilbert was a pilot truck driver for D & D Energy Services, an oilfi eld transporta- tion company based in Grande Prairie, Alta. Hired in 2009, Gilbert hauled heavy oilfi eld equipment to various oilfi eld sites. D & D had a drug and alcohol policy that stated an employee who tests positive for drugs or alcohol would be placed on "in- defi nite leave, pending a thorough physical and psychological examination." It also said termination could be avoided with "proper medical attention and rehabilitation." In ad- dition, it stipulated that possessing, consum- ing, and using illegal drugs in any company vehicle while on duty was a violation of the policy. Gilbert signed a letter acknowledging she read and understood the policy in 2013. Gilbert had a disciplinary record that in- cluded a written warning for speeding in September 2011, an accident in January 2012 when her truck slid into a ditch and hit a tree, and a July 2012 incident in which she damaged a truck bumper when she backed into a cement barrier in parking lot. Termination a mutual agreement, not reprisal for harassment complaints Worker had altercations with 2 diff erent supervisors in short time with company; complained of harassment and agreed to payout BY JEFFREY R. SMITH A WORKER'S brief tenure with an Ontario company came to an end due to a mutual agreement to terminate the employment re- lationship and wasn't a reprisal to the work- er's harassment complaints, the Ontario Labour Relations Board has ruled. Neil Smith began employment with FIO Automotive, a manufacturer of welded auto- motive parts for Toyota plants in Stratford, Ont., on Jan. 16, 2017. Smith's employment was under a one-year fi xed-term employ- ment contract expiring on Jan. 16, 2018. As part of the contract, Smith agreed to provide assistance to support production activities whenever needed and abide by a daily excess hours agreement. e excess hours agree- ment allowed FIO to assign Smith overtime beyond his normal 40 hours per week. e employment contract also contained CREDIT: BACHO/SHUTTERSTOCK When mitigation isn't mitigation pg. 3 Ontario Court of Appeal stirs controversy by not including income during notice period Sorting out the gig economy pg. 4 Employment standards must adapt to new types of employment from companies such as Uber and Airbnb with Brian Johnston WORKER on page 8 » WORKER SEEN on page 11 » ASK AN EXPERT pg. 2 Is not caring cause for dismissal?

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