Canadian Employment Law Today

CELT June 26 2013.qxp:celt 467.qxd 13-06-17 10:36 AM Page 7 CANADIAN EMPLOYMENT LAW TODAY MORE CASES COMPILED BY JEFFREY R. SMITH ...continued from page 1 cers and members of management who are issued such equipment." Exceptions had to be authorized by management. In March 2008, the three trainers were assigned to conduct a duty firearm practice session for border service officers in Windsor, to be held at the Windsor police range. On March 28, at the end of a training session, all three went out to dinner at a restaurant and bar wearing their full uniforms and sidearms. At the restaurant, they ran into the chief of enforcement operations for the Windsor Tunnel border crossing, who came up to them and said they were violating CBSA's firearm policy. Jacques said there was no such policy enforced back in Ottawa — where they had been allowed to leave the office for short trips and errands with their sidearms — and said they didn't have a place to store their weapons at the police range. He claimed no-one had given them any directive not to wear their firearms. The training superintendent learned of the incident and asked Christenson who gave them authorization to wear their firearms on their dinner break. Christenson replied that they had been given authorization but didn't say who gave it. The superintendent contacted other management members but none claimed to have authorized them and there was no written authorization. The three trainers were suspended for five days each. Though they claimed to have acted in good faith, expressed regret and said they thought the policy didn't apply to them because they were trainers, not officers, CBSA felt they had "subjected yourself and the organization to unnecessary safety risks as well as tainting the image of CBSA." The adjudicator noted employers have the right to establish rules and policies, but they must be clear. He found CBSA's firearms policy was not. The policy didn't include trainers in its listing of to whom it applied, nor did it mention any other group into which trainers would fall, so there was confusion as to whether they were subject to it — Jacques told the superintendent in the restaurant he didn't think they were violating the policy. The wording of the pol- icy didn't indicate the list was "nonexhaustive, and it cannot be inferred that trainers are included," said the adjudicator. The trainers' belief they weren't subject to the policy was supported by the fact they were allowed to go out for brief errands with their firearms in Ottawa, said the adjudicator. In addition, they had no directives from management in Windsor that it was any different there. The adjudicator found that while it may have been intended for the policy to apply to all CBSA personnel who carried firearms, it was not the case in reality. Also, the CBSA code of conduct defined misconduct as "a wilful action or inaction" by an employee, though it was established that the three trainers did not act in bad faith or knowingly breach the policy. Finally, there was no evidence public perceptions were affected by the incident, said the adjudicator. CBSA was ordered to remove the suspensions from the records of the three trainers and to reimburse each of them five days' pay and benefits. See Christenson v. Deputy Head (Canada Border Services Agency), 2013 CarswellNat 988 (Can. Pub. Service Lab. Rel. Bd.). CELT Workers given fewer hours than were promised ...continued from page 3 whether it was in line with the general expectations of the parties and with their likelihood of success, taking into consideration several factors including the duration of litigation, risk to the parties, and good faith of the settlement. The court noted it was obvious the settlement brought about a timely resolution of the claims, as the litigation had been ongoing for more than two years, damages claimed arose from matters dating back as far as 2006, and the litigation risk if the matter moved to trial was substantial. None of the workers objected to the settlement agreement and Dominguez received a small additional payment of $2,500 for her efforts as representative plaintiff. This was in addition to the payment of approximately $16,000 that each worker in the class was expected to receive. With regards to the opt-out notices delivered by some of the workers, the court was satisfied that it was appropriate to invalidate them and include those workers in the class. Although this matter has come to its conclusion, the decision illustrates the high cost employers can face when not abiding by the terms of their contracts with foreign workers. This is especially true in cases where the employer's operations rely on a large number of foreign workers, and more so when most of them come from the same country and share the same background. Employers should never disregard their obligations under federal or provincial legislation with respect to any employee, and that includes for- eign workers. See Dominguez v. Northland Properties Corp. (c.o.b. Denny's Restaurants), 2013 CarswellBC 707 (B.C. S.C.). CELT ABOUT THE AUTHOR Sergio R. Karas Sergio R. Karas is a certified specialist in Canadian citizenship and immigration law by the Law Society of Upper Canada. He is editor of the Global Business Immigration Handbook, published by Thomson Rueters. He can be reached at (416) 506-1800 or karas@karas.ca. Published by Canadian HR Reporter, a Thomson Reuters business 2013 7

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