Canadian Employment Law Today

How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 ©2019 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechani- cal, 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. GST #897176350 Emplo y ment Law Today www.employmentlawtoday.com Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) E-mail: customersupport.legaltaxcanada@tr.com www.employmentlawtoday.com Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Media Solutions, Canada: Karen Lorimer Publisher/Editor in Chief: Todd Humber Editor: Jeffrey R. Smith E-mail: Jeffrey.R.Smith@tr.com Sales Manager: Paul Burton Email: paul.burton@tr.com Phone: (416) 649-9928 Marketing Co-ordinator: Keith Fulford Email: keith.fulford@tr.com Phone: (416) 649-9585 ©2019 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechani- cal, 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. GST #897176350 Emplo y ment Law Today Canad ad ad ad ad ad a ian an an www.employmentlawtoday.com Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) E-mail: customersupport.legaltaxcanada@tr.com www.employmentlawtoday.com Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Media Solutions, Canada: Karen Lorimer Publisher/Editor in Chief: Todd Humber Editor: Jeffrey R. Smith E-mail: Jeffrey.R.Smith@tr.com Sales Manager: Paul Burton Email: paul.burton@tr.com Phone: (416) 649-9928 Marketing Co-ordinator: Keith Fulford Email: keith.fulford@tr.com Phone: (416) 649-9585 YOU MAKE THE CALL Was Doncaster's tardiness just cause for dismissal? OR Was Doncaster wrongfully dismissed because of his union organizing efforts? IF YOU SAID Doncaster was wrongfully dismissed because of his union organizing eff orts, you're right. e board found the hotel didn't follow its own progressive disci- pline policy — it provided one written warn- ing for being late on Sept. 9 and 10, but his termination letter gave those dates as rea- son for termination. In addition, though the general manager mentioned Sept. 16 and 17 as dates Doncaster was late, there appeared to be some confusion over whether his shift was actually changed — and those dates weren't in the termination letter anyway. e board found the hotel didn't provide a reasonable explanation for Doncaster's dis- missal and, since it came during the union organizing campaign, one could conclude union activities were a factor — especially since management was already aware of Doncaster's pro-union bent. Even though Doncaster tried to keep the campaign from management, he was informed that man- agement had become aware of it. e board determined the hotel failed to establish tardiness as just cause to dismiss Doncaster and his union organizing activi- ties were likely a factor in the dismissal. See UFCW, Local 401 and Widewaters Calgary Hotel Management Co., ULC, Re, 2018 Car- swellAlta 237 (Alta. Lab. Rel. Bd.). Employee late for work too often while trying to unionize THIS INSTALMENT of You Make the Call features a hotel employee who was fi red for multiple instances of being late — while at the same time he was trying to unionize the hotel's staff . Aaron Doncaster was hired in November 2016 to be a dishwasher at the Hilton Garden Inn and Homewood Suites in Calgary. At his orientation, he was told the hotel followed a progressive discipline policy and discipline was used to correct problems, not as punish- ment. Doncaster had a history of being involved with unions and union organizing and was a member of the International Alliance of eatrical Stage Employees (IATSE) be- cause he had worked at concert venues — he even had a tattoo of the IATSE logo with the phrase "union power" on his arm. Doncaster started working evening shifts, but in July 2017 he was moved to morning shifts. Soon after, he began having issues with punctuality, which the hotel's execu- tive chef mentioned to the hotel's new gen- eral manager. e general manager told the executive chef to begin documenting Don- caster's absences. In August, Doncaster contacted the local branch of the Union of Food and Commer- cial Workers (UFCW) about starting a certi- fi cation campaign at the hotel, as he had met with some of the employees and found some interest. At the beginning of September, Doncaster and two other organizers began a campaign among hotel employees. Over the course of the next few weeks, Doncaster met with employees in the staff room or outside of work so he could keep the campaign hidden from management for as long as possible. In early September, Doncaster asked the executive chef for time off to attend a bar- becue sponsored by UFCW on Labour Day. e executive chef said unions were the "scum of the earth" and there was no place for them in the hospitality industry. Don- caster said nothing about his organizing ef- forts. Doncaster was 24 minutes late for his shift on Sept. 3. When he was late again on Sept. 8 and 9, the executive chef informed the gen- eral manager, who told him to write up Don- caster. e chef also said Doncaster was a "loose cannon" who was frequently protest- ing things. Doncaster was issued the writ- ten warning for tardiness on Sept. 10, which stated the next occurrence would result in "suspension and/or termination." Doncaster was almost one hour late on both Sept. 16 and 17, which he protested because he claimed the executive chef had changed the start time of his shifts — this often happened the day before a shift. How- ever, there was no record of those shifts being changed and the executive chef said he wasn't 100 per cent sure that he hadn't changed the shifts. On Sept. 19, another employee texted Doncaster stating management was aware of the union organizing campaign. Around the same time, the general manager audited Doncaster's attendance and discovered he had been late a total of six times between Sept. 3 and 17. On Sept. 21, the hotel terminated Don- caster's employment for arriving late after receiving a written warning. e termina- tion letter referred to his tardiness on Sept. 9 and 10 and the general manager verbally mentioned Sept. 16 and 17. Doncaster ar- gued his start time sometimes changed, but management said it wouldn't be changed by only 15 minutes. He also asked if there were any other reasons for his dismissal, to which management said there were none. After Doncaster was dismissed, most of the hotel employees lost interest in joining UFCW and the union didn't receive the 40 per cent support required to fi le for certifi - cation.

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