Canadian Employment Law Today

July 24, 2013

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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CELT July 24 2013:celt 467.qxd 13-07-09 2:45 PM Page 11 CANADIAN EMPLOYMENT LAW TODAY MORE CASES COMPILED BY JEFFREY R. SMITH ...continued from page 1 tem for a period of time, making it difficult to determine impairment. The employee was suspended with pay pending further investigation. On Dec. 12, the employee who had refused the drug test was asked about his drug use and was non-co-operative. He refused to answer questions about his off-duty drug use, which he considered none of his employer's business. Both employees were suspended without pay for two days and the refusing employee was referred to a substance abuse professional. After the consultant informed the city he couldn't assess the risk without more information, the city terminated his employment for "lack of co-operation and direct violation of the Halifax Regional Municipality substance abuse prevention policy." An arbitrator found the supervisor didn't observe any of the indications of likely impairment outlined in the policy and the policy didn't say anything about a refusal to take the test being a deemed positive result or warranting dismissal. The city was ordered to reinstate the employee with full pay and benefits. The city appealed the decision, seeking suspension without pay until the employee co-operated with an assessment of his drug use to determine his ability to safely operate vehicles at work. The court noted the city's drug testing policy applied to safety sensitive positions and stipulated "testing may be performed if a supervisor determines there is reasonable cause to suspect an employee of alcohol or other drug use." This determination was to be based on "the supervisor's specific observations" including erratic behaviour, unsteady walking, or changes in speech patterns. The court also noted safety concerns must be considered legitimate unless clearly shown to be unfounded and efforts to create a safe workplace should be recognized. However, the court found nothing in the province's Occupational Health and Safety Act that diminished the worker's right not to be dismissed without just cause. The safety concerns the city had about the employee, based on thin evidence, did not constitute just cause, said the court. The court dismissed the appeal and upheld the arbitrator's order of reinstatement. See Halifax (Regional Municipality) v. CUPE, Local 108, 2013 CarswellNS 376 (N.S. S.C.). ■ JUST CAUSE: 'When you gotta go...' doesn't wash with arbitrator A BRITISH COLUMBIA employer had just cause to dismiss an employee who was caught urinating in a janitor's storage room, an arbitrator has ruled. The employer was a bakery and the employer had worked for the bakery for 23 years, involved in the production of baked goods for sale. He mostly worked in the production area at the rear of the bakery. Beside the production area was a small room where materials for cleaning the store were kept, as well as paints and other chemicals. The floor of the room featured an open floor sink which the janitor used to drain away paints and other liquids. Usually, the janitor was the only employee who used the room. In July 2011, a female co-worker went to the janitor's room to fill a spray bottle with cleaning solution. When she entered the room, she discovered the employee standing in front of the floor sink urinating. She asked him, "Are you taking a leak?" to which he replied "the boys are bad" or "the boys can't wait," according to the co-worker. The coworker obtained the cleaning solution and left the room. About six weeks later, the co-worker wrote a note to the bakery and described what she had seen. On Aug. 28, the store manager conducted an investigative interview with the employee. Initially, the employee didn't admit to anything, but when told there was video evidence, he agreed he had urinated in the room. When prompted, the employee also admitted he had done so three or four other times in the previous several months. The employer claimed he had an urgent need to urinate and he felt pain and "extreme force." He didn't think he could hold it for the extra minute or so to get to the washroom, so he went in the sink. He said he felt embarrassed when the co-worker caught him, but he didn't think anything would come of it. The manager asked if the employee had any medical issues that contributed to his actions and the employee produced a note from his doctor a few days later. However, the bakery felt the note didn't indicate any condition that prevented the employee from making it to the proper washroom – it simply said the employee needed regular bathroom breaks "for medical reasons." The store was also concerned that the area of the janitor's room was accessible to the public and a customer could have seen him. It terminated his employment on Sept. 20, 2011, for breach of trust of his obligation to follow hygiene and safety requirements and maintain the company's reputation. The employee grieved the dismissal, arguing he had a lengthy employment record free of discipline. The arbitrator noted that in a workplace such as a bakery, hygiene is a priority. The employee's actions was misconduct that was so serious in such an environment that it "undermines the viability of the employment relationship," said the arbitrator. "In the food industry, the issue has had to be addressed in a remarkable number of occasions by arbitrators, including in this province, where an employee has chosen to ignore the basic standards of civilized behaviour in their workplace," said the arbitrator. "In the food industry it is viewed as misconduct of a particularly serious nature." The arbitrator found dismissal was appropriate in the circumstances, given the nature of the employer's business, the seriousness of the conduct, the employer's concerns with public reputation, the potential loss of business and risk of regulatory sanction, and the need for deterrence. With no real medical evidence showing he couldn't make it to the washroom, there was no mitigating factors, said the arbitrator. The grievance was dismissed. See X. v. Y., 2012 CarswellBC 2188 (B.C. Arb. Bd.). Published by Canadian HR Reporter, a Thomson Reuters business 2013 CELT 11

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