Canadian Employment Law Today

June 26, 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 HAB Press, a subsidiary of Key Media 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 HAB PRESS, A SUBSIDIARY OF KEY MEDIA 312 Adelaide Street West Suite 800, Toronto, ON M5V 1R2 President: Tim Duce Editor: Jeffrey R. Smith Email: Sales Manager: Paul Burton Email: Phone: (416) 649-9928 Marketing Co-ordinator: Keith Fulford Email: Phone: (416) 649-9585 HAB Press Ltd. Emplo y ment Law Today Canad ad ad ad ad ad a ian an an YOU MAKE THE CALL Was Paton constructively dismissed? OR Were the employer's changes reasonable? IF YOU SAID the employer's changes were reasonable, you're right. e adjudicator found that it was clear Spearing's inventory control of the parts used in its operations was "seriously defi cient." It made sense that the company needed to make some changes in order to address this problem — for which Paton had not been blamed. e changes that required Paton to check with inventory control to determine if re- quired parts were available at another loca- tion, rather than negotiating with suppliers and ordering parts, amounted to a change in the process of managing the company's in- ventory but not Paton's main duties and re- sponsibilities — she was still responsible for ordering parts. As for the change in security procedures, it may have made things more diffi cult for Paton, but again, her duties and responsibilities didn't change signifi cantly, said the adjudicator. " e right of the company to ensure the se- curity of its property is an inherent manage- ment right and obligation," the adjudicator said. "As a result, it obviously was prepared to suff er the inconvenience and ineffi cien- cies of Ms. Paton in achieving that goal." e adjudicator also found that the reduc- tion in Paton's salary was voluntary and had been taken by all employees and managers at Spearing due to the economic conditions in the oil industry at the time. Since she agreed to it, it couldn't be used as an argument for constructive dismissal, said the adjudicator. In addition, the job title change had no bearing on Paton's job, as her essential duties didn't change and she didn't supervise any staff , said the adjudicator in fi nding there was no demotion. Given that Paton expressed her intention to resign in written form on Jan. 1, 2017, the arbitrator determined that she was not con- structively dismissed and instead resigned from her employment. For more information see: • Paton and Spearing Service L.P., Re, 2018 CarswellNat 914 (Can. Lab. Code Adj.). Inventory control changes not what employee ordered THIS INSTALMENT of You Make the Call features a worker who didn't like the in- creased security changes at her work. Spearing Service is an oilfi eld trucking service company based in Carlyle, Sask., that transports cargo such as crude oil, water, and natural gas liquids to various locations in southeastern Saskatchewan and Manitoba and operates specialty equipment such as hot oilers and pressure trucks at oilfi eld sites. Melissa Paton was an employee of Spear- ing with the job title of parts and service. Her duties included looking after the stocking of parts for vehicles and equipment and reor- dering them when necessary, including ne- gotiating prices with suppliers and shipping the parts where they were needed. Spearing was acquired by a larger com- pany, Mullen Group. Soon after the acqui- sition, there were questions over inventory controls, as the counts were signifi cantly lower than the orders. ere were record keeping errors and orders that weren't com- pleted, for which Paton was responsible. Paton went on maternity leave. When she returned, Spearing was facing a downturn in the oil industry. e company cut some staff and Paton agreed to a salary cut to save her job — as did all remaining employees and managers. Her job title also changed from parts manager to just parts. At the same time, Spearing implemented new inventory control and security proce- dures, including the hiring of an inventory control person, due to the inventory discrep- ancies that had been found. Under the new arrangement, Paton would have to check with inventory control before ordering new parts, so it could be determined if the parts were available at another Spearing location. New security arrangements included the changing of locks and keys, which Paton felt hindered her ability to do her job effi ciently — previously she had her own keys to access inventory, but now she had to obtain them from another offi ce or other employees be- cause fewer keys were available. In November 2015, management met with Paton and the inventory control person. Paton wasn't positive about the changes, but management reassured her that her job title and duties would not change signifi cantly. Paton applied for an open position of parts and fl eet manager — a role with which she had worked closely for several years — but Spearing felt she didn't have the experience or mechanic skills, so she didn't receive an in- terview. Two weeks later, there were rumours Paton had said she was quitting, so the oper- ating manager met with her. She complained about the absence of keys and the new inven- tory controls making it diffi cult to do her job. e manager told her that the inventory con- trol process had changed but her duties and pay hadn't — she was still responsible for or- dering and shipping parts. Paton denied she was quitting, but said it might depend on how she was treated. According to Paton, she felt intimidated and bullied at the meetings as she was the only woman. On Jan. 1, 2017, Paton gave written two weeks' notice and didn't show up for work on Jan. 6. She later claimed Spearing construc- tively dismissed her by changing her duties, cutting her pay, and demoting her.

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