Canadian Employment Law Today

Canadian Employment Law Today | 7 Cases and Trends Canadian HR Reporter, 2019 to lay-off already exists. erefore, unless the right to lay-off is otherwise found within the employment relationship, the above cit- ed sections of the Act are not relevant." e Alberta Court of the Queen's Bench provided a different interpretation in Vrana v. Procor Ltd., finding that the temporary layoff provisions in the Alberta Employ- ment Standards Code created an implied term in all employment agreements allow- ing employers to temporarily lay off em- ployees per the terms of the code. e case was overturned on appeal, but the Court of Appeal did not explicitly address the issue of whether the statute creates an implied term for temporary layoff, instead noting the code requires all employers give "fair notice" of a temporary layoff. Although the law remains unsettled, the majority of the case law follows the Collins ap- proach. If the right to impose a temporary lay- off is not an express term of the employment agreement, it will still be found to be part of the employment relationship if the employee consents, or where temporary layoffs are common practice in the workplace, industry or sector in which the employer operates. For more information see: • Collins v. Jim Pattison Industries Ltd. (1995), 7 B.C.L.R. (3d) 13 (B.C. S.C.). • Vrana v. Procor Ltd., 2003 ABQB 98 (Alta. Q.B.). Colin G.M. Gibson is a partner with Har- ris and Company in Vancouver. He can be reached at (604) 891-2212 or cgibson@har- risco.com. following year decreased. is happened a second time in 2017. Also in 2017, Huron adopted a new per- formance evaluation form. Alexander's per- formance was rated as satisfactory on the new form. Concerns with job performance and fuel use By early 2018, Huron's operations manager — who was also the son of the company president — was concerned with Alexan- der's job performance, as the number of contracts Alexander had procured and to- tal crop acreage was lower the other three originators. He also discovered that Alex- ander was using more fuel in his company truck per 100 kilometres than the others. e operations manager suspected Alex- ander was either using company-paid fuel for his own use or the fuel was being stolen. e operations manager and the presi- dent met with Alexander on Jan. 24, 2018, to discuss their concerns. ey prepared a termination letter, agreement, and release in advance, but wanted to hear Alexander's response to their concerns before making a final decision. However, when the issue of fuel use was raised, Alexander didn't have an explana- tion satisfactory to management, saying only he had suspected that his neighbour was stealing gas from him "for years." e operations manager and president didn't believe this excuse and felt they couldn't trust him with using company vehicles and working away from the office. ey decided to terminate Alexander's employment and provided him with the termination letter, agreement, and release. No reason for termination was given in either the letter or the release, which Alex- ander was asked to sign in exchange for two additional weeks' wages. Alexander was given a cheque for pay in lieu of notice, but he refused to sign the termination agree- ment or release, so he didn't receive the sec- ond cheque for the additional two weeks of pay. One week later, the company provided a record of employment stating the reason for the document was dismissal. Alexander applied for employment in- surance (EI) benefits. When the EI officer dealing with his claim contacted Huron's operations manager, the manager said Al- exander had been dismissed for "several things" including missing fuel and per- formance. He said the company hadn't looked into the missing fuel and they felt Alexander wasn't performing to their ex- pectations. e officer prodded for more details, but the manager just said Alexan- der "wasn't a good fit, that's all." e EI officer determined Alexander had not been dismissed for misconduct and was eligible for EI benefits. However, Alexander commenced an unjust dismissal complaint against Huron under the Canada Labour Code. e adjudicator noted that just cause for dismissal under the code was traditionally evaluated by considering whether there was reason for a disciplinary response by the employer, was the decision to dismiss excessive, and if so, what discipline should be substituted. In this case, Huron raised a potential cause related to the possibility that Alexander stole fuel, though it didn't include that as a reason for dismissal in the termination letter. However, the EI officer, in evaluating Alexander's EI claim, determined that Al- exander had not been dismissed for mis- conduct. As a result, there was no issue of dismissal for misconduct, said the adjudi- cator. Huron also mentioned Alexander's job performance as an issue, both in the termi- nation meeting and in discussion with the EI officer, but Huron didn't pursue this as a cause for dismissal, focusing on the loss of trust issue. Without-cause termination planned e adjudicator found Huron did lose some trust in Alexander based in the fuel issue and Alexander's response to it in the meeting, but it wasn't enough to support a conclusion that it was the reason for dis- missal. Huron management prepared the termination documents before the meet- ing with Alexander on the understanding it would be a dismissal with notice rather than cause. It was only during the meeting that they decided the loss of trust would be a reason. In addition, the operations manager did not give loss of trust as a reason for dis- missal when discussing it with the EI offi- cer. Instead, he mentioned "several things" including missing fuel, but the latter wasn't investigated. Ultimately, the manager said the dismissal was due a failure to meet their expectations and Alexander wasn't a good fit, which were related to job performance — a different reason than was supposedly decided on at the termination meeting and not consistent with previous performance reviews, said the adjudicator. e adjudicator found that there was no evidence of misconduct by Alexander, and without such evidence, employer loss of trust could not constitute legitimate cause for dismissal under the code. Dismissal un- der the code must be for cause, and cause requires proof, said the adjudicator. "At some level, 'we lost trust' means noth- ing more than 'we decided to dismiss,'" the adjudicator said. "Employer loss of trust is not cause for employee discipline." Without cause for any form of discipline, let alone dismissal, Huron Commodities was ordered to reinstate Alexander with compensation for all lost income and ben- efits since his dismissal, plus costs. For more information see: • Huron Commodities Inc. and Alexander, Re, 2019 CarswellNat 1957 (Can. Lab. Code Adj.). « from ASK AN EXPERT on page 2 Employer didn't investigation concerns over fuel theft Shutdown could result in temporary layoff « from LACK OF CLARITY on page 1

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