Canadian Employment Law Today

September 4, 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 Sept 4 2013:celt 467.qxd 13-09-13 10:59 AM Page 11 CANADIAN EMPLOYMENT LAW TODAY MORE CASES COMPILED BY JEFFREY R. SMITH ...continued from page 1 and be careful" when he pushed metal piping off the edge of the raised areas. On his second day of work, Aug. 15, the worker was clearing metal on the second floor when he fell out of a hole in the exterior wall of the building. There was no barrier or safety markings around the hole — which was at least eight feet wide and six feet high — and the worker fell about three metres onto a pile of pipe sections. He broke his legs and ribs, spending two weeks in the hospital before recovering. It was discovered that in addition to not providing any safety training to the worker, Clearway had no safety plans, safety documentation, hazard assessment, emergency response plan or fall protection procedure for the site in question or any of its other work sites. After the worker fell, another employee told him he'd call an ambulance, but the worker said he wanted to go back to the office. There didn't appear to be a plan on how to handle the situation. It became evident the owners had not visited the worksite and had no knowledge of health and safety procedures there. Clearway's safety manager said he had not performed any safety duties at the worksite because he thought the owner of the industrial plant would do so, which it did not. The Alberta Provincial Court found Clearway showed "disregard as to the health and safety of its employees" which led to the worker's accident and the poor response. It issued the following fines: •$50,000 for failing to ensure the health and safety of the worker as far as it was "reasonably practicable" •$15,000 for failing to assess the worksite and identifying potential hazards before work began •$5,000 for failing to prepare a written hazard assessment report •$20,000 for failing to establish an emergency response plan for an emergency requiring rescues or evacuation •$10,000 for failing to develop a fall protection plan at a worksite where a worker could fall three metres or more. Added to the $100,000 in fines was a $15,000 mandatory provincial victim surcharge. "In ordering these fines I consider my conclusion that (Clearway's) apparent disregard of the health and safety of its employees, and in particular, the temporary workers it obtained to carry out the work that resulted in the injury to (the worker), demands a sufficient level of penalty to constitute specific deterrence in this defendant, and to at the same time act as a general deterrent to those entities and individual operators engaged in dangerous industrial and related businesses and activities in Alberta," said the court. See R. v. Canadian Consolidated Salvage Ltd. (Clearway Recycling), 2013 CarswellAlta 769 (Alta. Prov. Ct.). CELT No reason to believe co-worker lied about motive ...continued from page 7 work environment and the company failed to conduct a comprehensive investigation into Johnson's racism complaint. GM was ordered to pay almost $160,000, included wrongful dismissal damages, special damages and damages for bad-faith in the course of dismissal. GM appealed the decision and found a more sympathetic ear with the Ontario Court of Appeal. The Court of Appeal found it was unreasonable for the trial judge to determine Markov's account of the earlier incident was questionable because he added details to his account in the third investigation that he hadn't disclosed before. That wasn't sufficient to determine Markov had lied throughout, said the appeal court. The appeal court also noted Markov could have come up with another reason to skip his training if he was lying, he agreed to train with another employee who was a person of colour, and Johnson didn't directly experience any racist comments or behaviour from Markov. The only basis for his belief Markov was racist was hearsay from another employee who made the statement about Markov's brother being killed by a black man. In addition, the other employee who made the remark to which Johnson allegedly laughed was white, said the appeal court. The Court of Appeal found the trial judge's findings that Markov's avoidance of GMS training was "solely raciallybased" and the body shop was a poisoned work environment due to racism were unreasonable and lacking evidence. Though Johnson may have genuinely believed he was subjected to racism, GM's actions – three separate investigations – in response to Johnson's complaint were reasonable and met its duty to properly investigate, said the court. The court also found GM's offers of alternative positions in other facilities were reasonable, and Johnson's refusal was a repudiation of the employment agreement, not constructive dismissal by GM. These offers of continuing employment are inconsistent with the notion that GM was resiling from its employment relationship with Johnson," said the Court of Appeal. "In fact, GM concluded that Johnson himself had effectively elected to terminate the employment relationship with GM only after Johnson declined to accept the employment positions offered by GM, failed for another two months to return to work, and failed to provide GM with current medical evidence to support his claim of continuing disability." The Court of Appeal set aside the trial judge's award of damages and dismissed Johnson's action against GM. See General Motors of Canada Ltd. v. Johnson, 2013 CarswellOnt 10496 (Ont. C.A.). Published by Canadian HR Reporter, a Thomson Reuters business 2013 CELT 11

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