Canadian Employment Law Today

April 22, 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. Air Canada worker fights restructuring THIS EDITION of You Make the Call features an airline employee who disputed that he was dismissed due to restructuring. Abbas Dolly worked as a customer service manager sales (CSMS) in the passenger services department of Air Canada's airport operations branch at the Vancouver International Airport. He was hired on a part-time basis in August 2016 and became a full-time employee three months later. Dolly was one of nine CSMSs at the Vancou- ver airport providing oversight and support to agents who deal with customers. In 2017, Air Canada informed management that it must cut 100 positions through the first quarter of 2018 as part of a restructuring plan intended to streamline operations. Manage- ment determined that the airports branch could cut 12 positions across Canada in the first quarter of 2018, including two CSMS positions — one in Vancouver and one in Edmonton. At the Vancouver airport, they planned to imple- ment a shift rotation of four-on, four-off, leav- ing one position to cut. Involuntary separation packages were prepared for the 12 employees, which included Dolly. In choosing Dolly to be the CSMS to let go, management considered performance assess- ments and seniority. Dolly's year-end rating for 2016 was "performing at an average level" with "room for improvement," although Dolly rated himself highly in all categories. In addi- tion, one of the remaining CSMSs had to have training as a premium CSMS — a position deal- ing with premium products and customers for which Dolly didn't have training. When Dolly was told his position was being eliminated and his duties were being distributed to the remaining CSMSs, he was shocked as he felt he had been a dedicated employee and he had received letters of appreciation from passen- gers he had assisted. He also claimed that other employees had made errors and stolen time, so they were more deserving of a layoff, and one of the CSMSs that was kept over him was on proba- tion and had no airline experience. Dolly made a complaint of unjust dismiss- al, arguing that the Canada Labour Code only permitted dismissal for a lack of work or dis- continuance of a function. He claimed he was dismissed because of restructuring and not a shortage of work, as he had been scheduled to work overtime immediately before and after his termination and he had not been informed of the reason for his dismissal. In addition, Dolly pointed out that Air Canada continued to hire new employees during this period, in- cluding four employees to fill vacant positions. He also pointed out that his manager who had input into the decision had worked with him at another airline and was worried Dolly would disclose the fact the other airline had fired the manager. Emplo y ment Law Today Canadian YOU MAKE THE CALL Was Air Canada entitled to dismiss Dolly? OR Was Dolly unjustly dismissed? IF YOU SAID Air Canada was entitled to dis- miss Dolly, you're right. The adjudicator noted that it had been established that an employer can distribute a position's duties to others if that allows the employer to eliminate a posi- tion and discontinue the function of that po- sition. Such circumstances can lead to people being busy but results in a lack of work for the person whose duties were reassigned. In this case, Air Canada reduced the number of CSMS positions at the Vancouver airport and didn't increase that number — the only hires were for existing positions. It was within Air Canada's right to determine the number of CSMS posi- tions it wanted to have at the Vancouver air- port, said the adjudicator. "I agree such a decision is best left to the em- ployer and not one that the [Canada Labour Code] is meant to interfere with," the adjudica- tor said. The adjudicator also found that Air Canada didn't have to tell Dolly what he had done to warrant being dismissed since he wasn't being dismissed for cause. The airline informed all employees who had been cut that it was because of restructuring. Unfortunately, Dolly refused to accept this because he believed himself to be more capable and a better employee than some of those who remained. Although Dolly gave himself high ratings, managerial assessments were less enthusiastic and most of the employ- ees who were kept had higher seniority. Either way, performance was only one factor in the decision to lay off Dolly, said the adjudicator. As for Dolly's claim of bad faith from the manager who had worked with him at another airline, the adjudicator found no evidence of bad faith — it was that manager who had hired Dolly in the first place and other managers sup- ported the decision that Dolly be the one to be let go. The adjudicator found that Air Canada acted in good faith in determining Dolly was the ap- propriate employee to be laid off in its restruc- turing and it "was properly a situation of a lack of work or discontinuance of a function." The complaint was dismissed. For more information, see: • Dolly and Air Canada, Re, 2019 CarswellNat 1096 (Can. Lab. Code Adj.).

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