Canadian Employment Law Today

Canadian HR Reporter, 2020 Canadian Employment Law Today Canadian Employment Law Today | | 7 More Cases More Cases certification that would result in a limit on the work that could be assigned to him, which for ABS demonstrated a negative attitude and "a lack of interest in supporting your colleagues by sharing the workload." ABS was also concerned with his refusal of training that would limit the type of surveys he could do. Finally, ABS noted that Zetea had failed to complete the Port State Control Test (PSC), which meant he couldn't be assigned survey work at all until he passed. Zetea responded that neither the certification nor the survey training was mandatory and he never refused an assignment. He also explained that he had failed the PSC because he had been about to go on vacation and was rushed — he successfully completed the test after returning. Zetea's next performance review recognized his technical skills, but it identified the same ar- eas needing improvement. Zetea disagreed and asked for evidence of his shortcomings, but ABS didn't fulfill his request. Performance improvement plan On May 23, 2018, ABS gave Zetea a 90-day performance improvement plan (PIP) listing examples of client complaints and reiterating concerns from the warning letter. ABS indicated that Zetea was to have zero negative feedbacks from clients during the PIP period, complete a minimum of 25 per cent of all report reviews monthly — he had completed just more than 14 per cent over the previous three years — and the completion of five short courses during the first 30 days. A failure to meet these expectations "would result in further disciplinary action, up to and including termination." Zetea felt blindsided and refused to sign the PIP. He argued that the PIP was vague on the cli- ent complaints and said it was unreasonable to expect zero negative feedback. He also said the report reviews minimum was unreasonable due to his workload. Zetea worked under the PIP for three weeks before going on a two-week medical leave. He didn't complete the forms for medical benefits, so ABS paid him his regular salary. ABS told him he had been overpaid and the matter would have to be reconciled. Zetea went on a one-month vacation and returned on Aug. 21. His supervisor told him to contact a co-worker about his work assign- ments, also reminding him to complete the courses set out in the PIP. However, there was some confusion as Zetea had received two re- cords of employment due to a temporary re- moval from payroll to stop the overpayments. When he inquired to HR, he was told not to do anything until the representative responsible re- turned from vacation. On Aug. 24, Zetea asked if he was still em- ployed with ABS and his supervisor replied in the affirmative. The HR representative called him to discuss any concerns he had, but Zetea didn't return the call. The same day, Zetea's law- yer emailed ABS's counsel to advise that Zetea had been constructively dismissed. On Aug. 27, Zetea emailed his supervisor to say that "I am not anymore employed with ABS." ABS emailed Zetea stating that he had not been constructively dismissed and he had until Aug. 31 to reconsider and return to work. Zetea declined and ABS sent a letter on Sept. 3 inform- ing him that it had accepted his resignation. Zetea then sued for constructive dismissal, claiming the PIP made his continued employ- ment intolerable. The adjudicator found that Zetea had areas requiring improvement and that he "failed to respond to them in a positive manner." There was no indication the criticisms were unfound- ed or that ABS treated Zetea any differently than other surveyors. As for the warning letter, Zetea was correct in that some of the certification and training wasn't mandatory, but the main concern was his negative attitude and "declining interest in improvement," the adjudicator said. The PIP was also part of "an ongoing and good faith effort by the employer" to improve Zetea's performance, the targets were only for the 90-day period of the PIP, so they were not unreasonable, the adjudicator added. When Zetea returned from his vacation, there was no doubt ABS considered him to be em- ployed and subject to the PIP, as his supervisor confirmed as much. His failure to return the HR representative's call on Aug. 24 also would have indicated to ABS that he no longer had doubts. The adjudicator determined that the per- formance reviews, warning letter and PIP were "good faith and reasonable attempts to work with Zetea to improve his performance and make him a better senior surveyor" and they did not constitute constructive dismissal. In addi- tion, there should not have been any doubt that he was still an employee when he returned from vacation said the adjudicator in dismissing the claim. For more information, see: • Zetea and American Bureau of Shipping, Re, 2020 CarswellNat 639 (Can. Lab. Code Adj.). « from PERFORMANCE on page 1 Employee felt blindsided by performance improvement plan ered in A1600147 (Re). In that case, a fellow employee named the worker as someone who was frequently complained about in a cus- tomer review on a public Facebook page. The manager then used a work computer to show the post to the worker — there was a clear and sufficient work connection. It is unclear what impact the pandemic will have on work connections to bullying and ha- rassing behaviour. If employees are required to work from home, it may be less significant whether social media activities took place at work or on a work computer . Occupational health and safety legislation in Canada generally requires employers to have bullying and harassment policies in place, to review these policies, ensure workers are in- formed about them and investigate complaints. In Bassanese v. German Canadian News Company Limited et al., a court awarded an employee $50,000 in aggravated damages in a wrongful dismissal action because the employer failed to investigate the employee's complaints of work- place harassment and abuse. Employers should be aware of the potential for liability under human rights law. In Taylor- Baptiste v. OPSEU, the Ontario Human Rights Tribunal determined that online bullying and harassment may be sufficiently connected to the workplace to attract liability for discrimi- nation in employment. The Ontario Human Rights Tribunal determined that online harass- ment outside working hours may contravene the "harassment in employment" provisions of the Human Rights Code if the conduct is "with respect to employment" or "in the work- place." The tribunal noted that "in 2012 post- ings on blogs and other electronic media may be part of or an extension of the workplace and… the code may apply to them." However, the particular blog posts at issue did not con- stitute harassment because there was not a suf- ficient connection to the workplace. When employees work at home, the con- cept of the "workplace" may be ambiguous. Employers should ensure their bullying and harassment policies are comprehensive in this new environment. For more information, see: • A1800306 (Re), 2019 CanLII 45838 (B.C. Workers' Comp. Appeals Trib.). • A1600147 (Re) (July 29, 2016), Elaine Murray — vice-chair (B.C. Workers' Comp. Appeals Trib.). • Bassanese v. German Canadian News Company Limited et al., 2019 ONSC 1343 (Ont. S.C.J.). • Taylor-Baptiste v. OPSEU, 2012 HRTO 1393 (Ont. Human Rights Trib.). Colin G.M. Gibson is a partner with Harris and Company in Vancouver. He can be reached at (604) 891-2212 or cgibson@harrisco.com. Harassment « from ASK AN EXPERTon page 2

• Cover