Canadian Employment Law Today

Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2018 More Cases 'Entire agreement' clause good to have in contract « from ASK AN EXPERT on page 2 or misleading. Also, it is best practice to have a candi- date sign a written employment contract which contains an "entire agreement" clause, stating that the employment agreement contains the complete agree- ment between the parties, there are no collateral agreements, no party has made any representations to the other except as specifically set forth in the contract, and any statements or representations that may previously have been made, in- cluding but not limited to negligent mis- representations, have not been relied on in connection with the execution of the contract and are of no effect. For more information see: • Queen v. Cognos Inc., 1993 CarswellOnt 801 (S.C.C.). • Grant v. Oracle Corporation Canada Inc., [1995] M.J. No. 12 (C.A.). • Honey v. Star-FM Radio Inc., 2000 CarswellBC 1132 (B.C. S.C.). • Douglas v. Unitel Communications Inc.. 1996 A.J. No. 1418 (Alta. Q.B.). Colin Gibson is a partner with Harris and Company in Vancouver. He can be reached at (604) 891-2212 or cgibson@ harrisco.com. Three warnings for misconduct all given together « from TIMING on page 1 club's policy on public holiday pay. After Brewer's promotion to kitchen supervisor, tension with management increased. She refused to use hamburg- er meat the club had purchased and demanded that bottled beer be used to make beer batter rather than beer the club supplied — she felt reheating cooked hamburger meat and using leftover beer from the taps wasn't sanitary. She also used paper boats on wing night and once ordered too much bread for the kitch- en, causing increased costs. On another evening, she refused to take food orders after 5:45 p.m. even though the kitchen closed at 6 p.m. On May 12, the second vice-president saw Brewer smoking marijuana outside during working hours. Five days later, Brewer was asked to move plastic dish- washer trays from near the fridge to a trailer because the heat from them made potatoes stored there spoil quickly. She was given two more reminders but failed to do it and the second vice-president eventually did it herself. e second vice-president later testi- fied that after the marijuana incident, the club thought of terminating Brewer's employment, but the restaurant was busy and it would be difficult to find a new cook. She also felt she could use her mil- itary background to help people rather than "writing up" Brewer for calling the police on her. Shortly before the Victoria Day holi- day on May 22, Brewer again asked the second vice-president about public holi- day pay. is time, the second vice-presi- dent said definitively that Martello Unit 377 didn't provide public holiday pay to part-time employees. Brewer insisted that she was entitled to public holiday pay and tried to give the second vice-president a pamphlet she had printed from the Ontario Ministry of Labour website. e second vice-presi- dent refused to take the pamphlet and angrily said they would talk about it later. She also said the accountant was "taking care of things." On June 1, the second vice-president and the club's president met with Brew- er at the end of her shift and gave her a written "official verbal warning" for cut- ting off orders early and her "sporadic outbursts and abrupt behaviour," along with two written warnings. e first written warning was for her consuming marijuana during working hours, failing to move the dishwasher trays, and using disposable paper containers instead of glassware during a period that wasn't busy, contrary to policy. e second written warning cited a failure to send staff home when it wasn't busy, failing to complete the bread order in a timely fashion — Brewer had argued that there was sufficient bread in the freezer at the time — failing to fulfil wing orders due to a shortage caused by her not check- ing the stock, and not listing spoilage or employee lunches on the food write-off sheet. All of these indiscretions hurt the club's bottom line, management said. Brewer read the three warnings and asked if she was "being fired." e presi- dent answered "yes," which surprised Brewer because she hadn't been told of any concerns with her job performance to that point. She also thought she had increased sales in the restaurant and took food safety and other responsibilities of the kitchen supervisor position seriously. Brewer filed an employment standards complaint, saying that all the misconduct listed on the warnings was untrue with the exception of cutting of orders early on wing night because the chef told her to do so. In particular, she denied smok- ing marijuana at work. An employment standards officer found Brewer was fired as a reprisal for her public holiday pay request and issued several orders to pay Brewer. Martello Unit 377 appealed to the Ontario Labour Relations Board, arguing Brewer was ter- minated for smoking marijuana and in- subordination. e board found it hard to believe that the second vice-president didn't immedi- ately confront Brewer when she saw her smoking marijuana outside the work- place and her reasoning that she wanted to help people was "nonsensical." It also wasn't credible that if there were several concerns with the way Brewer operated the club's kitchen, no-one spoke to her about it before issuing the warning let- ters. No communication of concerns or warnings were issued until after Brew- er asked about public holiday pay a second time, which angered the second vice-president, the board said. e board dismissed the appeal and upheld the orders to pay, finding Brewer's termination was a reprisal. For more information see: Army Navy and Airforce Veterans in Canada Martello Unit 377 v. Brewer, 2018 CarswellOnt 12394 (Ont. Lab. Rel. Bd.). WEBINARS Interested in learning more about employment law issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as navigating benefits during the notice period, discipline and dismissal for off-duty conduct, Ontario's employment standards changes, and diversity in the workplace. To view the webinar catalogue, visit cpdcentre.ca/hrreporter.

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