Canadian Employment Law Today

CELT May 15 2013.qxp:celt 467.qxd 13-05-02 9:49 AM Page 7 CANADIAN EMPLOYMENT LAW TODAY MORE CASES COMPILED BY JEFFREY R. SMITH ...continued from page 1 when she asked to leave halfway through her shift to see her doctor. After the weekend, on June 20, Nunes called the HR supervisor and told her she couldn't work due to the pain in her feet. Nunes claimed she said she needed time off, but the HR supervisor thought she wanted to quit, so she told her to fill out a resignation form. The HR supervisor thought Nunes told her she was having problems with her feet and she wanted to stop working. Since Nunes didn't ask for accommodation or disability benefits, the HR supervisor determined Nunes wanted to resign and completed the form for her, citing resignation for medical reasons. She didn't give Nunes a copy of the form. The HR supervisor asked Nunes for the key to her locker and access card. Nunes cleaned out her locker and left. Quality posted her job a week later. Nunes didn't read her record of employment — which stated she quit — because it was in English. Her husband read it 10 days later and called Quality to say she didn't intend to quit. Nunes assumed she had to clear out her locker and return her materials because she was unsure of when she would return to work. She said she didn't ask for sick leave because "I am not a sick person." Her husband also contacted the union, which filed a grievance. The arbitrator found the situation could most likely be attributed to a misunderstanding between Nunes and the HR supervisor, exacerbated by the language barrier. Quality was aware of the problems Nunes had with her feet and when she said she wanted to stop working because of her feet, the arbitrator said it would "be a relatively exceptional conclusion" to think she was quitting her job rather than requesting time off. The arbitrator found there was no subjective intention by Nunes to quit, as she didn't understand what was happening. Nunes said she didn't know she may have been entitled to accommodation or benefits, which is why she didn't ask for them. She also didn't understand the rea- son for clearing out her locker and turning over her security key. She was simply following the HR supervisor's requests. The arbitrator also found Nunes' actions after the dismissal showed she didn't mean to quit. Though some time passed before her husband called to clear things up, it was because she couldn't read her record of employment and was under a mistaken impression, said the arbitrator. Once she understood what was happening, she made efforts to clarify that she hadn't quit. Quality was ordered to reinstate Nunes and determine if she was entitled to disability benefits while she was unable to work. See Quality Meat Packers Ltd. and UFCW-Can, Local 175 (Nunes), Re, 2013 CarswellOnt 3605 (Ont. Arb. Bd.). ■ SICK LEAVE: Horseplay on truck serious but not worthy of firing A BRITISH COLUMBIA employer has been ordered by an arbitrator to reinstate a worker who was dismissed for a serious safety violation. Darcy McVeigh, 24, worked for Teck Coal, a mining company based in Vancouver. McVeigh drove large haul trucks carrying mining materials and also trained new employees. On May 4, 2010, McVeigh was riding in a haul truck while a new employee he was training was driving. They were driving with two other haul trucks behind them. They came upon a grader coming from the other direction and McVeigh saw a friend inside. In "spur-ofthe-moment" decision, McVeigh undid his seatbelt, opened the passenger-side door of the haul truck and stepped onto the deck outside with one foot. While holding onto the door frame, McVeigh tossed an apple core across the road towards the grader. The core missed and McVeigh got back inside. The driver of the truck directly behind them saw the incident and reported it to the foreman, who called a meeting with McVeigh. McVeigh admitted his actions, though he disputed the other driver's claim that he leaned in front of the windshield. Teck was concerned about the incident, as safety was a high priority for the company. Employees received safety orientation when they started, and Teck emphasized safety in regular crew meetings and training programs. Teck began an investigation and interviewed McVeigh. McVeigh acknowledged what he did, but said he didn't think it was serious and he "did it for a chuckle." He couldn't explain why he did it, it was a spontaneous action. The company found his conduct violated its safety policies and the safety of him and the trainee. When asked if he had anything to add, McVeigh said no. Other employees who saw the incident were interviewed and they corroborated the story. Teck felt McVeigh's behaviour was a "blatant violation of policy" and since he was entrusted to do training, it was even more serious. It also felt McVeigh didn't show remorse and didn't seem to grasp the seriousness of the situation. McVeigh had less than two years of service, so Teck decided to terminate his employment, despite a good record up to that point, as of May 5, 2010. A month later, the union told Teck McVeigh understood the seriousness of his actions and asked for reinstatement. The arbitrator found McVeigh took a risk, as haul trucks were large pieces of equipment that presented a dangerous situation and could intimidate trainees. McVeigh's duty was to set a safety example and he failed. However, the company's zero tolerance for horseplay and safety violations didn't mean dismissal was the only course of action available, said the arbitrator. McVeigh had a spotless record to the point where he was found suitable to train employees. Though he didn't immediately acknowledge the seriousness of his misconduct, he later apologized to the company. The arbitrator found McVeigh should be reinstated with a five-day suspension, which should be sufficient to meet Teck's zero-tolerance policy and the principle of deterrence. However, the arbitrator noted McVeigh "has forfeited his role as a trainer." See Teck Coal Ltd. v. U.S.W., Local 9346, 2011 CarswellBC 3891 (B.C. Arb. Bd.). Published by Canadian HR Reporter, a Thomson Reuters business 2013 CELT 7

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