Canadian Employment Law Today

Canadian HR Reporter, 2020 Canadian Employment Law Today Canadian Employment Law Today | | 7 More Cases More Cases In October 2015 — only a few months after he joined Absolute — Matthews was involved in a minor accident that resulted in Absolute Charters suspending him for one week. One year later, in October 2016, he had a similar accident. In September 2017, the bus he was driving made contact with a tractor trailer and sheared off the tractor trailer's side mirror. Mat- thews didn't report the incident, but Absolute became aware of it when the tractor trailer driv- er reported him. Matthews said he didn't report it because he was unaware there was contact. Shortly after the September 2017 incident, Matthews asked to be taken off the driver ro- tation during the September-October busy stretch, hinting that he might be quitting his job. However, one week later, he asked to be reinstated. Absolute Charters believed this was an improper attempt to get around the com- pany's policy against vacation time during that period, so it gave Matthews a verbal warning. A few months later, in January 2018, Mat- thews passed some slow-moving vehicles in his bus in a school zone, which was against compa- ny policy. He received another verbal warning. In March 2018, Matthews was involved in two incidents: On March 8, he damaged his bus after sliding on some ice and hitting a pole but didn't report the incident. The following day, he bumped into a taxi while backing up his bus without a spotter — also contrary to company policy. He tried to resolve the issue directly with the taxi driver to avoid having to report it, but another Absolute employee witnessed the inci- dent and insisted he report it. Last-chance agreement At a March 14 meeting with management, Matthews was given a "last-chance" letter that summarized the incidents and stated that "any further violation of company poli- cies will result in your dismissal" and a third preventable collision "within the next year would be considered grounds for dismissal." He was also suspended pending completion of a driver evaluation, further training and a written test on company policies. Matthews served his suspension, completed the training and took some time off, returning on April 17. On his second day back, he was assigned to drive a chartered bus early in the morning, taking passengers from a downtown hotel to meetings at Purdy's Wharf on the wa- terfront, about two kilometres from the hotel. Matthews wasn't very familiar with the streets around Purdy's Wharf and, on his way to the hotel, he noticed traffic congestion in the area. When he arrived at the hotel, he com- mented to the group's liaison that he hoped there wouldn't be a delay due to the traffic around Purdy's Wharf. However, the liaison believed Matthews said he wouldn't be able to deliver the passengers to Purdy's Wharf and would have to drop them off at a location that was a five-minute walk away. The hotel liaison called the group's liaison at Purdy's Wharf to relay the information. The Purdy's Wharf liai- son panicked and ran toward the new drop-off location, where she intercepted the bus and guided it to the wharf. The location was eas- ily accessible through the road system and the passengers were dropped off in the originally planned location. The client who had chartered the bus con- tacted Absolute Charters about the incident and the company had to apologize for Mat- thews unnecessarily causing concern and con- fusion. It then terminated Matthews' employ- ment, stating that he should have been familiar with the Purdy's Wharf area as they made many drop-offs and pickups there, and he should have called the dispatch line about any traffic concerns rather than upsetting the client. The termination letter also stated that he showed poor judgment and violated various policies. The adjudicator agreed that Matthews showed poor judgment when he said some- thing to the client liaison and may have helped create the confusion. However, the adjudicator found it was "equally plausible that the liaison person misinterpreted what she heard and set in motion these events in error, at little or no fault of [Matthews]." Since it wasn't clear what exactly was said and who caused the confusion, it wasn't enough to serve as a culminating incident justifying dismissal, said the adjudicator. With no clear evidence of serious misconduct, there wasn't sufficient cause for dismissal. Although the adjudicator found Matthews was unjustly dismissed, he declined to rein- state Matthews to his position, pointing to Mat- thews' disciplinary history and the fact that he was on a last-chance agreement after Absolute Charters had seriously considered termination already. In addition, Matthews had spoken disrespectfully about his direct supervisor and indicated negative views of the company. This was not a viable employment relationship, the adjudicator said. Instead of reinstatement, the adjudicator ordered Absolute Charters to pay Matthews compensation for six months' notice, equal to $12,367.60. For more information, see: • See Matthews and Absolute Charters Inc., Re, 2019 CarswellNat 1332 (Can. Lab. Code Adj.). « from NOVA SCOTIA on page 1 Last chance letter warned against further misconduct Duty to mitigate only when dismissal is wrongful ing point, because the duty to mitigate arises only where an employee has been wrongfully dismissed. The employee may argue that if the required amount of working notice has been provided, there is no obligation to look for other employment. An interesting Alberta decision on this point is Deputat v. Edmonton School District No 7. The employee was an engineering technician who was provided with 12 months of working no- tice of dismissal. The employee worked out the 12-month period and then sued the employer for wrongful dismissal. At trial, the employee was awarded damages based on a notice period of 18 months. The employer took the posi- tion that the employee had failed to mitigate because he didn't start a job search until five months before the end of his 12-month notice period. The trial judge rejected this argument and found that under the circumstances the employee had acted reasonably. The Alberta Court of Appeal disagreed: "The assumption in the reasons is that the respondent had no duty to look for a new job which would start before the old one finished. That is not the law. Mitigation need not be per- fect, and there is more than one way to reduce a loss. A new permanent job would be bet- ter than the old job which was certain to end inside a year. Indeed, a new job might have better pay or working conditions than the old one. The respondent had a duty to look for a new job, even if a good one might have to be started before the 12 months were up." The Appeal Court reduced the employee's damages by 50 per cent on the ground that he had failed to take reasonable steps to mitigate. The principle that arises from Deputat is that if an employee who has been given work- ing notice of dismissal claims their notice was insufficient and intends to pursue a wrongful dismissal action, the employee has an obliga- tion to start a reasonable job search during the working notice period. For more information, see: • Deputat v. Edmonton School District No 7, 2008 ABCA 13 (Alta. C.A.). Colin Gibson is a partner with Harris and Com- pany in Vancouver. He can be reached at (604) 891-2212 or cgibson@harrisco.com. « from ASK AN EXPERT on page 2

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