Canadian Employment Law Today

December 2, 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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©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, photocopying, 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 How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 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 NAUK Subscriptions Co-ordinator: Donnabel Reyes Email: Phone: (647) 374-4536 ext. 243 THIS INSTALMENT of You Make the Call fea- tures an Ontario worker who was fired after being caught vaping at work. The 33-year-old worker was a warehouse attendant at the Saputo Dairy Products distribution centre in Vaughn, Ont. Hired in March 2015 as a part-time employee, he moved to full-time in June 2018. His job du - ties included shipping, receiving and picking orders for the distribution of Saputo dairy products. All Saputo employees were subject to vari - ous workplace policies covering topics such as good warehousing and distribution prac- tices and a drug and alcohol policy — which were necessary because of food safety rules. The warehousing and distribution practic- es included a no-smoking policy in which smoking was allowed only in designated ar- eas outside the warehouse. The worker was trained on the policies and provided written acknowledgement of them. Over the course of his employment with Saputo, the worker received several written reprimands for tardiness and punctuality. On Jan. 30, 2019, another employee re - ported that the worker was vaping inside the warehouse, which was confirmed by video surveillance footage that depicted him clearly and casually vaping. The employee said that he had seen two other employees vaping with the worker on other occasions, but there was no footage of them and they denied it. Saputo determined that this was a serious violation of health and safety standards. The worker admitting that he had been vaping in - side the warehouse but that he wasn't aware that vaping was considered a form of smoking that was restricted. He also wasn't aware of the Smoke Free Ontario Act that had come into effect a few months earlier, which expressly prohibited vaping inside. Saputo hadn't put up signage in the workplace about it that was required under the act. The same day, Saputo terminated his em - ployment for cause, citing violation of its policies and its concerns over food safety. The worker was in shock, as he hadn't expected to be terminated for vaping, and as a result he didn't try to defend his actions. The other two workers who had been reported to be vaping with him but had no evidence against them were given warnings. The worker sued for wrongful dismissal. YOU MAKE THE CALL Was there just cause for dismissal? OR Was the worker wrongfully dismissed? IF YOU SAID the worker was wrongfully dis- missed, you're right. The court found that there was no evidence that the worker or any other em- ployees had been made aware that vaping was also prohibited by Saputo's no-smoking policy. It wasn't specifically covered in the policy and there was no evidence it was covered in the train- ing. In addition, Saputo hadn't yet informed its employees of the Smoke Free Ontario Act's ex- plicit prohibition on vaping — it was later added to the training after the worker's dismissal. Given the worker's claim that he didn't know vaping was a form of smoking restricted under the policy, the court found that there wasn't enough evidence to prove Saputo employees understood the ban on vaping before the work - er was caught, said the court. The court noted that the surveillance video footage depicted the worker clearly vaping in the warehouse around other people and not making any attempt to hide it. He also openly admitted to doing it when he was interviewed by management. This indicated the worker made no attempt to hide his misconduct or even knew he was committing misconduct, said the court. "If company policies had expressly prohib - ited vaping and/or if the employees had been told that the prohibition on smoking cigarettes inside included a prohibition on vaping, and/ or if the signage and communications contem- plated by the Smoke Free Ontario Act, 2017 had been implemented by Saputo prior to Jan. 30, 2019, then the type of willful disobedience required [for just cause] might have existed in this case, but none of that has been established here," said the court. The court also found that, although the evi - dence of vaping by the other two employees wasn't as strong as that against the worker, Sa- puto seemed satisfied that the warning it gave them was "proportionally sufficient to deter them from repeating the alleged infraction and to satisfy the company's safety concerns." Not applying the same standard to the worker was unfair, the court said, adding that employees should be given the opportunity to "mend their ways before being discharged." The court upheld the wrongful dismissal claim and ordered Saputo to pay the worker four months' pay in lieu of notice, equal to more than $14,000. For more information, see: • Attzs v. Saputo Dairy Products Canada G.P., 2020 ONSC 5512 (Ont. S.C.J.). Worker fired over confusion between vaping and smoking The worker clearly vaped around other people and didn't attempt to hide it. Smoking was only allowed in designated areas outside the warehouse.

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