Canadian Employment Law Today

CELT May 1 2013:celt 467.qxd 13-04-29 10:43 AM Page 11 CANADIAN EMPLOYMENT LAW TODAY MORE CASES COMPILED BY JEFFREY R. SMITH ...continued from page 1 Engineering, which then entered into a contract with VIH to provide Rennie's services in helicopter maintenance for one year. The contract stipulated that an engineer who provided the services was an employee of Blue Stone and Blue Stone would be responsible for paying, hiring, firing and supervising its employees and for making the appropriate payroll deductions, though he would be under the direction of a VIH maintenance supervisor. The contract was renewed annually. On Oct. 15, 2008, VIH terminated the contract effective Oct. 30. The two weeks' notice was in accordance with the termination clause. Rennie made several attempts to find out why he was being terminated, but VIH didn't formally give him any information. He heard secondhand there was a problem with his attitude and not his performance. Rennie filed a complaint of unjust dismissal under the Canada Labour Code, asserting he was entitled to reasonable notice as an employee. VIH argued he had chosen to be an independent contractor when Blue Stone was incorporated rather than remain an employee. The adjudicator found VIH had much of the control and direction of Rennie's work, as many of his work activities were directed and supervised by a VIH maintenance supervisor. Though Rennie's attendance and work hours were flexible, he usually worked similar hours as other VIH employees and the actual work dealing with the repair and maintenance of helicopters was the result of decisions by VIH, said the adjudicator. The adjudicator also found though Rennie used some of his own small tools, VIH provided all special tools, equipment, work clothing and transportation to job sites. Rennie was also paid for expenses such as meals, accommodation and cellphone costs. Though VIH argued Rennie was free to work for other companies, his sole employment and income was from VIH and the work he performed was "an inte- gral part of the business of the company," said the adjudicator. The adjudicator also found Blue Stone was created to meet VIH's request for an incorporated entity to take Rennie's place on the payroll. This didn't change the working arrangement between them "on a day-to-day basis." Though VIH made payments to Blue Stone for Rennie's work, the money was always Rennie's, said the adjudicator. The arbitrator found that despite the contract with Blue Stone, there was an employer/employee relationship between VIH and Rennie. As a result, Rennie was entitled to notice under the Canada Labour Code, which the adjudicator pegged at 14 months, equal to $112,780.66. Minus Rennie's earnings from another job he found, VIH, was ordered to pay $70,690.66. See Rennie and VIH Helicopters Ltd., Re, 2013 CarswellNat 744 (Can. Labour Code Adj.). ■ JUST CAUSE: IT worker fired for accessing employee's personal folder A BRITISH COLUMBIA credit union had just cause to dismiss an employee who accessed another employee's personal information without permission, the B.C. Supreme Court has ruled. Susan Steel was hired by Coast Capital Savings, a credit union in the B.C. lower mainland headquartered in Surrey, B.C., in 1987. In 1997 she became a helpdesk analyst in Coast's information technology (IT) department. As a helpdesk analyst, Steel was able to access any document or file in the organization, including personal folders employees were assigned for their own use on the company network. She worked mostly unsupervised, but was only allowed to access personal folders if an employee needed technical assistance and gave permission. To obtain permission to access a personal folder, there was a set protocol to follow. Steel acknowledged and signed off on Coast's policies regarding confidential information and was familiar with the protocol for accessing personal folders. In July 2008, Steel's supervisor told her he needed a document containing a list of priorities for employee parking spaces, but he was having difficulty getting in contact with the department manager who kept the file in her personal folder. Steel had helped the department manager recently and knew where the file was, so she accessed the file. However, she received a phone call and left the file open. The department manager tried to open the document in her personal folder and found it was already in use by Steel. Since she hadn't authorized the access, the manager called Steel's supervisor to complain. Steel's supervisor asked Steel about it and she told him she accessed the folder to get the file he was looking for. She said she had done nothing else with the folder and apologized for "not taking the appropriate approach to accessing the file." Three days later, Coast terminated Steel's employment for breach of trust and violating its privacy policies. Coast stated it had lost confidence in her, which irreparably damaged the employment relationship. Steel contested the dismissal, arguing helpdesk staff were encouraged to solve problems on their own initiative and the misconduct wasn't just cause for dismissal. The court found Steel's supervisor hadn't requested Steel to access the document and had Steel he would speak with the department manager about it. Therefore, Steel went into the personal folder and opened the document for her own purposes, said the court. Additionally, she had left the document open and only told the supervisor she opened it when he came to investigate the complaint. The court noted the document Steel accessed had other confidential information on it such as employees' seniority and pay grades, including Steel's. It was definitely a document she shouldn't have accessed without following the formal procedure for obtaining permission, and her failure to do so was a serious breach of trust, said the court. The court upheld the dismissal and dismissed Steel's complaint. See Steel v. Coast Capital Savings Credit Union, 2013 CarswellBC 781 (B.C. S.C.). Published by Canadian HR Reporter, a Thomson Reuters business 2013 CELT 11

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