Canadian Employment Law Today

September 25, 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 ©2019 HAB Press Limited, a subsidiary of Key Media KEY MEDIA and the KEY MEDIA logo are trademarks of Key Media IP Limited, and used under license by HAB Press Limited. CANADIAN EMPLOYMENT LAW TODAY is a trademark of HAB Press Limited. 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, mechanical, photo - copying, 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/HST#: 70318 4911 RT0001 Emplo y ment Law Today Canadian Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE 20 Duncan St. 3rd Floor, Toronto, ON M5H 3G8 President: Tim Duce Editor: Jeffrey R. Smith Email: Copy Editor: Patricia Cancilla Sales Manager: Paul Burton Email: Phone: (416) 649-9928 Marketing Co-ordinator: Keith Fulford Email: Phone: (416) 649-9585 HAB Press Ltd. A tipple during relief work powers down worker's employment THIS INSTALMENT of You Make the Call features an electrical utility worker who brought some booze on a trip across the border to provide assistance to an area that lost power from a storm. e 54-year-old worker was a front- line manager for Hydro One, an electricity transmission and distribution utility serving Ontario, in Beachville, Ont. He first joined Hydro One in July 1986 and became a front- line manager on a temporary basis in 2016 with the position becoming permanent in 2017. He had no discipline on his record and was regularly trained on Hydro One's code of conduct — which specifically prohibited "drinking intoxicants or using illegal drugs in the workplace" or bringing them "to any Hydro One workplace" — and safety rules. On March 3, 2018, the worker was asked to travel to Baltimore, Md. with other Hydro One employees to help with restoring power to the area after a major storm. e worker agreed and planned to meet with other Hydro One employees in St. Catherines, Ont. that evening for an overnight drive to Baltimore. As he prepared to leave, the worker decided to take a partially full bottle of whiskey with him. After the rendezvous in St. Catherines, the worker was responsible for leading a group of six or seven trucks to the storm area. e convoy drove overnight and arrived at the staging area at the Baltimore airport at about 6 p.m. on March 4. e worker parked his truck with other Hydro One vehicles and joined a group of 27 Hydro One employees. After talking with them for a few minutes, he remembered the bottle of whiskey, so he returned to his truck, fetched the bottle from his bag and brought it back to the group. He took a gulp and asked if anyone wanted the rest. None of the other workers took him up on the offer. A Hydro One customer operations man- ager was in the group and told the worker that his behaviour was inappropriate and he should put the bottle back in the truck. e worker went back to the truck, took one more swig and put the bottle back in his bag. He then sat in his truck to make a phone call and the operations manager came to the truck window, introduced himself as a manager and said he didn't appreciate the worker tak- ing another drink when he told him not to. Later that evening, the worker attended an orientation in the staging area before go- ing to his hotel. e next morning, when he arrived at the staging area, he was told they had to send him home. e worker asked if it was about the incident in the parking lot the previous evening and was told that it was. e worker then made the 12-hour drive back to Beachville in his Hydro One vehicle. e worker met with management on March 13 for a fact-finding interview, at which he acknowledged his misconduct and said it was a "stupid lapse in judgment" af- ter a long day on the road. Two weeks later, Hydro One terminated his employment for "failure to meet his duties as a leader, breach of trust, violation of the Hydro One code of conduct, and the Hydro One safety rules." Emplo y ment Law Today Canadian YOU MAKE THE CALL Was the worker wrongfully dismissed? OR Was there just cause for dismissal? IF YOU SAID the worker was wrongfully dismissed, you're right. e arbitrator found that the worker's misconduct was serious, as he knew the code of conduct and safety rules and also held a leadership role. By commit - ting a serious health and safety violation in front of Hydro One employees, the worker "failed to live up to Hydro One's reasonable leadership expectations," said the arbitrator. e arbitrator also pointed out that the worker was representing Hydro One "as an ambassador" in his role to help with storm relief efforts in Baltimore. ough there was no evidence of any adverse reaction from the Baltimore electric utility, the worker's mis- conduct had the potential to cause Hydro One embarrassment, the arbitrator added. However, the arbitrator found the work- er's 32 years of service without discipline was a significant factor in the worker's fa- vour, as was the fact that he acknowledged his misconduct in the meeting with man- agement and expressed remorse. is ac- knowledgement lent credence to the idea that this was an isolated incident in a long career and it was likely the worker wouldn't repeat the misconduct. e arbitrator set the termination aside and ordered it replaced with an unpaid sus- pension from the date of his discharge to the date of the arbitration decision — a period of three months — with no loss of seniority. "I.. Accept that the (worker) understands and accepts that his behaviour was complete- ly unacceptable, and he will never conduct himself in a similar manner in the future," the arbitrator said. "In these circumstances, there is a very good prospect that the (worker) can learn from his mistake and continue to be a good and valuable employee." For more information see: • Hydro One Networks Inc. and Society of United Professionals, Re, 294 L.A.C. (4 th ) 195 (Ont. Arb.).

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