Canadian Employment Law Today

CELT May 15 2013.qxp:celt 467.qxd 13-05-02 9:49 AM Page 4 May 15, 2013 CASE IN POINT: WRONGFUL DISMISSAL Flight advisors fired, reinstated after abandoning posts NAV Canada employees left on lunch breaks without backup following meeting about reduced staffing to cover breaks BACKGROUND Flying blind WHAT IS the bar for just cause for dismissal? This is a question employers have wrestled with endlessly. A common thread through much of Canadian employment law is that it's usually difficult for an employer to show just cause. This can be true even in professions where a high level of trust and good judgment is required. Employee of an organization such as NAV Canada have a lot of responsibility and trust placed in them to ensure the skies are as safe as they can be for air travellers. If an employee calls into question that trust and judgment, one might assume dismissal is warranted. But as is usually the case, one shouldn't assume anything and the context of the circumstances could mean a different result. | BY JEFFREY R. SMITH | TWO NAV Canada flight service specialists who left their posts unattended for a half-hour lunch break were guilty of serious misconduct that warranted suspensions but not dismissal, an arbitrator has ruled. Jeffrey Hicks and Justin Wiebe were stationed at NAV Canada's Kenora Flight Service Station in Kenora, Ont. Their positions as flight service specialists involved providing advisory information to aircraft in the area, such as weather, traffic, runway activity and other information that could impact flight safety. They did not control aircraft movement as air traffic controllers do, but the information they provided was important to flight safety as pilots made their decisions to land or take off based on the information received from flight service specialists. Both men worked 12-hour shifts — Hicks at the desk focused on the Kenora/Norway House area and Wiebe 4 the Red Lake, Ont., area. The desks were about five metres apart and normally during the day shift a third "floater/weather" employee was on duty who could fill in at each desk when someone needed to take a break, such as the half-hour lunch to which they were entitled. During one employee's break, two flights were ready for departure. During the other's a plane landed without the safety information he normally provided. Several sources contacted the manager to inform him of the lack of coverage. On May 17, 2011, the site manager convened a staff meeting to discuss summer staffing levels. Staff were asked for input on how to handle shifts if the floater/weather position wasn't filled and there was a vacancy from illness or vacation. Hicks asked how breaks would be covered in such a situation and the manager referred to procedures in the manual of operations, saying "do what you have to do." This wasn't well received by Hicks and other employees. The manager also informed the employees he would be taking the regular floater/weather employee to a meeting the next day (May 18), leaving Hicks and Wiebe on their own for their entire 12-hour shift. Took lunch breaks without backup On May 18, Hicks and Wiebe worked their shifts at each of their desks. At 11:36 a.m., Hicks broadcasted off and took a lunch break for 25 minutes. During his break, a flight landed at the Kenora airport without Hicks available to provide any information. At 12:18 p.m., shortly after Hicks returned, Wiebe took a 35-minute lunch break, leaving his desk. When each employee went on his break, he neglected to put his station on speaker setting so he or the other employee could hear any broadcast warning while he was away. This violated NAV Canada's core duty of emergency services. During Wiebe's break, several sources contacted the manager at his meeting to inform him the Red Lake desk wasn't providing any coverage. As it turned out, there were two flights ready for departure at Red Lake waiting for information. The manager contacted Hicks and asked him to get Wiebe back to his post immediately. Hicks later admitted to hearing chatter coming from Wiebe's headset but he made no effort to check it out, even Published by Canadian HR Reporter, a Thomson Reuters business 2013 Continued on page 5

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