Canadian Employment Law Today

February 26, 2020

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 ©2020 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: Production Editor: Patricia Cancilla Business Development Manager: Fred Crossley Email: Phone: (416) 644-8740 x 236 Marketing Co-ordinator: Keith Fulford Email: Phone: (416) 649-9585 HAB Press Ltd. A dispute over just cause THIS INSTALMENT of You Make the Call in- volves an aviation worker who challenged his employer's claim of poor performance as a rea- son for dismissal. Andrew Hedlund was an aircraft mainte- nance engineer (AME) for Perimeter Aviation GP, a commercial regional airline in Winni- peg. Perimeter hired Hedlund in May 2012. Hedlund worked at Perimeter's main base at the Winnipeg international airport. He usu- ally worked independently and his job du- ties included pre-flight inspections of aircraft. Recordkeeping was a big part of such inspec- tions, as everything entered into an airplane's technical log was part of its permanent record and Transport Canada required it. Hedlund's performance appraisals were generally average. With each one, his perfor - mance improved immediately following the appraisal, but it tailed off again over time. Management also met with him informally to discuss his performance. In October 2014, Perimeter transferred him from heavy maintenance to line maintenance with the hope that the latter's faster-paced en - vironment would help him or at least uncover performance issues more quickly. In September 2016, the company moved Hedlund to the night shift where a more structured environment and would give him more time to focus. However, eventually others didn't want to work with him as they didn't trust him to do his job properly. After several verbal and written warnings, Hedlund was suspended for one day in Janu - ary 2016 for failing to follow Perimeter's code of conduct — he failed to change a tire on an airplane and remove paint from a set of controls after being directed to do both. The suspension letter stated that failure to fulfil his duties in the future would result in further disciplinary action, up to and including termi - nation of employment. In March 2016, Perimeter suspended Hed- lund again, this time for three days. He had failed to complete a task card — a worksheet detailing the status of a task — at the end of his shift for the handover of maintenance on an aircraft. This was required by the company's maintenance handover procedures. The sus - pension letter once again warned that similar misconduct in the future would result in fur- ther discipline, including possibly dismissal. On Oct. 25, 2016, Hedlund was tasked with performing a daily inspection on an airplane. The next morning, the maintenance controller arrived and found out that a de-icing boot on the plane was delaminating — splitting into thin layers — from the leading edge of the hor - izontal stabilizer on the tail section. The con- troller looked for himself and observed that it was sticking out too much for someone not to see it, especially in the well-lit hangar. The controller checked Hedlund's inspec - tion report that confirmed he had signed off on it. No flags had been placed in the logbook and no task card had been generated for the de-icing boot. This was a serious concern as de-icing boots were critical to preventing ice from accumulating on the plane's tail during flight. Too much ice could cause an airplane to stall and crash, so Perimeter paid special atten - tion to de-icing equipment. Perimeter terminated Hedlund's employ- ment for just cause. Hedlund challenged the dismissal, claiming he wasn't provided with a reason for termination — Perimeter only did so after the complaint was filed. He also claimed that he had noted the defect during his inspection while the plane was outside, but his crew chief told him to carry on and he'd look into it. As a result, Hedlund didn't create a task card. However, the crew chief denied Hedlund had told him about the defect and said that, if he had, he would have told him to make a task card so it would be fixed. Emplo y ment Law Today Canadian YOU MAKE THE CALL Was Hedlund wrongfully dismissed? OR Was Hedlund dismissed with just cause? IF YOU SAID Hedlund was dismissed with just cause, you're right. The adjudicator had issues with Hedlund's credibility when he said he had told the crew chief about it. The crew chief denied that was the case and it didn't make sense that a task card wasn't cre - ated as soon as Hedlund found the defect — that was proper procedure and it was an im- portant repair. In addition, although Perimeter didn't ini- tially provide a reason for termination, it did so after Hedlund filed a complaint with the labour board, said the adjudicator. The adjudicator noted that Hedlund was in a safety-sensitive position, as the records he created were part of "a complex regulatory regime designed to ensure air safety." Trans - port Canada and Perimeter both relied on Hedlund to do his job properly and indepen- dently. Hedlund's failure to detect an obvious and dangerous defect such as a failed de-icing boot posed a danger to the public and a seri- ous breach in trust that he could perform his job properly, said the adjudicator. With Hedlund's previous disciplinary and performance issues, Perimeter had just cause to terminate Hedlund's employment, the ad - judicator said. For more information, see: • Hedlund and Perimeter Aviation GP Inc., Re, 2019 CarswellNat 5125 (Can. Lab. Code Adj.).

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