Canadian Employment Law Today

April 17, 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 Was the company entitled to terminate McNabb's employment for cause? OR Was the dismissal a reprisal and therefore wrongful? IF YOU SAID the worker's termination was legitimate, you're right. e Labour Re- lations Board found that there was no evi- dence the CEO was aware of the worker's involvement with the harassment investi- gation when he decided to terminate her employment. e worker made sure there were no records of the investigation around where he could fi nd them and didn't tell him anything about it. If the CEO didn't know about the worker's involvement, it couldn't have aff ected his decision to dis- miss her, said the board. In addition, it was clear that the worker was being performance managed through her probationary period. e CEO dis- cussed his concerns about her productiv- ity and gave her a formal review that indi- cated she needed to improve — before the worker's involvement in the harassment investigation. e fact that the worker be- gan sending work emails to her personal email account after the performance re- view showed that she was concerned about her job security and wanted any potential evidence from these emails if her employ- ment was terminated — all before she was asked to participate in the investigations, said the board. e Labour Relations Board determined that the worker's termination had nothing to do with her involvement in harassment investigations against GCL's CEO and COO and instead were for legitimate per- formance concerns about which she had been warned. e worker's complaint was dismissed. For more information see: • Mistry v. Commissionaires Great Lakes, 2019 CarswellOnt 3270 (Ont. Lab. Rel. Bd.). Worker fi red while helping out with harassment investigation THIS INSTALMENT of You Make the Call involves an executive assistant who was dismissed following harassment in- vestigations related to top executives at her company. e worker was employed as an executive assistant for Commissionaires Great Lakes (CGL), a security services provider in central and southwestern Ontario. She joined CGL in late 2015 on a three-month probationary period, but soon the CEO began raising con- cerns with her about her productivity. e worker had a probationary performance review that stated she needed to improve her priority setting and productivity. e worker reviewed the performance review document and signed it. At this point, she began sending work emails to her personal email account. In early 2016, the worker made a book- ing error on a fl ight the CEO was to take and didn't fi nalize hotel arrangements for a Commissionaire, so the CEO had to do it himself. On March 5, 2018, the chair of CGL's board asked the worker to help her with the logistics of internal harassment investiga- tions into the conduct of GCL's chief ex- ecutive offi cer (CEO) and chief operating offi cer (COO). As part of her duties in this project, the worker had to obtain documen- tation, schedule witness and board meet- ings, maintain meeting minutes, and report any complaints relevant to the investigation to the chair of the board. In addition, she scheduled a meeting between disgruntled employees and the chair of the board to dis- cuss the matter. Due to the sensitivity of the investigation, the worker didn't mention any of it to the CEO and kept no records where he would see them. After the internal investigation, the CEO requested that the board hire an external investigator to conduct a formal investiga- tion, to which the board agreed. e worker wasn't involved in the external investigation. On March 16, the CEO didn't know what the worker had been up to over the previous two days and when he asked she said she had covered for reception for half of each day as well as booked a lunch meeting and a train ticket for the board chair. However, when the CEO asked the receptionist how much time the worker had spent covering reception, it turned out to be only one to two hours each day. Since the worker had been warned about improving her productivity, the CEO felt the time she had wasted when she claimed she had been covering reception was the fi nal straw. He terminated her employment because she wasn't showing improvement following her probationary performance review. e worker fi led a complaint with the On- tario Labour Relations Board alleging that she was terminated from her employment as a reprisal for her involvement in the harass- ment investigations.

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