Canadian Employment Law Today

February 20, 2019

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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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 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: 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: Sales Manager: Paul Burton Email: Phone: (416) 649-9928 Marketing Co-ordinator: Keith Fulford Email: Phone: (416) 649-9585 Emplo y ment Law Today Canad ad ad ad ad ad a ian an an YOU MAKE THE CALL Did the employer wrongfully dismiss the employee? OR Did the employee resign from his employment? IF YOU SAID the employee resigned from his employment, you're right. e court found that SanMar asked Marmon three times to cover for someone in the shipping department and he refused all three times. Marmon was aware it was company policy that employees sometimes fi ll in for oth- ers, and each time he refused the company warned him it could lead to termination. e court also found that it wasn't a term on Marmon's employment to work as a ship- per at a lower rate of pay than the shipping rate — instead, he was required to do ship- ping duties on a temporary basis as needed, without an acting pay raise — which was a reasonable and lawful request. Marmon's intentional refusal to obey a lawful and rea- sonable order amounted to insubordination that was enough to justify dismissal. ough Marmon believed management was target- ing him, there was no evidence that was the case — SanMar's policy and practice was to ask all employees to help in other areas of the company on a temporary, as-needed basis. Marmon appealed the decision, but the appeal court upheld the lower court's deci- sion, fi nding that while Marmon didn't have a written employment contract that stipu- lated that the performance of temporary assignments without acting pay was part of the terms of his employment, company pol- icy, past practice, and the fact Marmon had done so on other occasions demonstrated it was an implied term of the employment contract. "( e trial court) committed no error in concluding that Mr. Marmon's conduct demonstrated a clear intent to no longer be bound by the terms of his employment con- tract, which had always included occasional temporary assignments in other depart- ments without acting pay," said the appeal court. See Marmon v. e Authentic T-Shirt Company, 2019 CarswellOnt 114 (Ont. S.C.J.). Worker's refusal to ship severs employment relationship THIS EDITION of You Make the Call fea- tures a worker who claimed he was termi- nated while his employer said he quit. Ace Marmon was hired in May 2010 by SanMar Canada, a wholesale distributor of t-shirts, hoodies, and other clothing with printed graphics. He worked as a shipper in the shipping department for a few years, during which time he trained other em- ployees in the department. In August 2015, SanMar made him a pick-up order atten- dant, though he sometimes still had to help out in other areas of the warehouse. It was company policy to have all employees work temporarily in diff erent positions to ensure its product was delivered effi ciently, so they were cross-trained. In late 2015, Marmon transferred out of the shipping department. Soon after, San- Mar increased the hourly wage for shippers, but Marmon's pay remained the same since he had moved out of the department. In Jan- uary 2016, he found out that a new employee who had started less than three months ear- lier as a shipper was making $3.50 per hour more than him. Marmon was upset at this development, as not only was this employee new, Marmon himself had trained the newcomer. He was also passed over for a promotion for another employee who he felt was less qualifi ed, so he began to feel singled out unfairly, partially because of hi manager's close monitoring of his punctuality — which involved coaching meetings and disciplinary warnings. In July 2016, he was put on probation and warned that his job was in jeopardy if he continued to have problems being late to work. Around the same time, Marmon request- ed a pay increase, complaining that it was unfair he was paid signifi cantly less than shippers, since he had worked in that posi- tion for several years. e company told him the diff erence in pay refl ected the diff erence in job duties between his current role and shippers — and he was no longer a shipper. On July 18, management asked Marmon to help with shipping duties — in line with the company policy of employees cross- training and helping in other departments — but Marmon refused, saying it was out- side his pay grade. He was reminded of the policy and expectations and sent home with a warning that refusing again would result in termination of his employment. Two days later, the shipping department was short-staff ed and Marmon was asked if he would help out. Marmon replied that he would, but only if he was paid the higher shippers' pay rate. When told that wasn't company policy, he said he wouldn't do it unless paid the diff erential. Marmon then left work without permis- sion. His supervisor called him at home and asked if he was coming back, to which Mar- mon replied, " e company doesn't want me anymore. Nice working with you." He also said he didn't know if he would be back the next day and he "didn't want to work in a company that doesn't treat people fairly." Marmon's manager called him and asked him to help in the shipping area, but Mar- mon maintained his position that he would only do so if paid the increased rate for ship- pers. e manager said the company would do that, so Marmon said he wouldn't return to work. He also said he understood that his employment would be terminated if he continued to refuse the request to help out in shipping. at same day SanMar sent Marmon a letter confi rming his resignation or, alterna- tively, termination for cause. Marmon then sued for wrongful dismissal.

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