Canadian Employment Law Today

Canadian Employment Law Today | 7 Cases and Trends Canadian HR Reporter, 2019 exhaust pipes were never connected to the shop exhaust system that was supposed to vent the fumes outside. e fumes frequent- ly got to her and she often had to miss work. Barton discussed the air quality and noise level with AWM's president on several occa- sions, noting that she had a history of sensi- tivity to loud noises. In July 2017, she wrote an email to him outlining her responsibili- ties and the problems she was experiencing because of the work environment. She sug- gested working from home most of the time. e president refused Barton's request to work from home, as part of her job duties was to act as a receptionist in the office. He said he was prepared to build an office on the building's second floor that was farther away from the noise and fumes from the service bays, but argued vehicles were rarely running while in the service bays, so there wasn't a need to connect them to the shop exhaust system. In addition, the president pointed out that the building was a trucking company shop and she had been aware of the nature of the business when she took the job. However, Barton continued to experience health problems until December 2017, when she brought a medical note to work indicat- ing she required one week of sick leave until Dec. 28. However, when she returned, the president seemed surprised to see her. He had thought her sick leave would be longer and he had hired another individual to do her duties in her absence, saying "working here obviously makes you sick" and there was nothing more he could do for her. e president offered Barton a "layoff," so Barton finished her work on the payroll for that week and prepared her own record of employment. e president asked her to help train the new worker, so she contacted the new worker, who explained that he had been offered a full-time job at AWM but he wasn't going to accept. Barton also filed a complaint with Work- safeNB about fumes in the service bay not being vented outside and the office door not being properly sealed. WorksafeNB investi- gated and found that the exhaust system was under repair and wasn't compliant with pro- vincial health and safety regulations. AWM repaired the system and was deemed com- pliant on Jan. 26, 2018. Barton then filed a complaint that she had been unjustly dismissed from her employ- ment, as AWM hadn't adequately protected her from an unhealthy work environment and it dismissed her because of her raising of health and safety issues and her illness, which she claimed was carbon monoxide poisoning. AWM denied terminating her employment, arguing she resigned because couldn't work because of her health issues, it had tried to make the workplace better for her — as evidenced by the WorksafeNB as- sessment — and it would welcome her back if she wanted to return. e adjudicator noted that Barton claimed her doctor believed she had carbon monox- ide poisoning, but she didn't provide medical evidence — no test results or written doc- tor's opinion. As a result, he couldn't infer the condition based only on Barton's "self- serving and uncorroborated statement." However, the adjudicator found that working in AWM's office did expose Barton to some level of exhaust fumes — the presi- dent acknowledged the situation and agreed to relocate the office to the second floor. But did she resign her position because of the workplace conditions or was she dismissed because of her complaints and illness? e adjudicator found that Barton was dismissed from her employment. ere was a personal dispute between Barton and the president over the work environment. e president was "clearly frustrated" with Bar- ton's complaints and only agreed to move the office reluctantly. When Barton went on sick leave, the president offered her job to another individual. ough he managed to get Barton's help in training her intended replacement, his motivation was to end Bar- ton's employment, said the adjudicator in determining Barton was unjustly dismissed. Barton didn't seek reinstatement in her complaint, so the adjudicator ordered AWM to pay her the equivalent of six weeks' wages plus five days' wages as sever- ance pay for her 17 months of service. See Barton and Alternate Waste Management Corp., Re, 2019 CarswellNat 1536 (Can. Lab. Code Adj.). « from ASK AN EXPERT on page 2 Discipline must always be proportional to misconduct « from WORKER LEFT FUMING on page 1 Worker's illness from fumes led to week of sick leave ing from the employer's rules or policies, or from the employer's enforcement of same • Whether theft is a problem in the work- place and the employer's response to other instances of theft in the workplace • Whether the theft was premeditated or the result of a confusion or an impulsive mo- mentary lapse of judgement • e employee's reaction when confronted with the allegation of theft including truth- fully acknowledging the wrongfulness of his or her conduct • Whether the employee co-operated in the investigation including identifying any ac- complice • e employee's length of service and disci- plinary record with the employer. As a best practice, employers should re- serve termination for cause for serious mis- conduct (i.e., the value of goods was high or the theft was of a continuing nature over a period of time or employee did not take accountability for his or her wrongdoing), or where an employee has been disciplined previously and has been shown unlikely to change their behavior. For more information see: • McKinley v. BC Tel, 2001 SCC 38 (S.C.C.). • Sobeys Capital Inc. and UFCW, Local 401 (B.(A.)), Re (2017), 279 L.A.C. (4 th ) 1 (Alta. Arb.). Tim Mitchell practices management-side la- bour and employment law with McLennan Ross LLP in Calgary. He can be reached at (403) 303-1791 or tmitchell@mross.com. CREDIT: LESTERMAN/SHUTTERSTOCK

• Cover