Canadian Employment Law Today

September 18, 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 18 2013:celt 467.qxd 13-09-13 10:58 AM Page 1 CURRENT NEWS AND PRACTICAL ADVICE FOR EMPLOYERS SEPTEMBER 18, 2013 Quick drink before work leads to firing Car accident on the way to work revealed level of impairment that made it unsafe to work in plant | BY JEFFREY R. SMITH | A SASKATCHEWAN company had just cause to fire an employee who had alcohol in his system following a car accident on the way JUST to work, a labour adjudicator has ruled. John Kish was a shift leader at an oil seed crush plant in Yorkton, Sask., operated by LDM Yorkton. He had nine employees reporting to him at the plant, which featured large equipment and high pressure steam to extract oil from canola seeds. In addition, seeds were heated with an explosive solvent and the plant also featured a high pressure boiler and ammonia chilling site. All of these elements created a work environment with potential danger and required a strong focus on safety. LDM Yorkton's focus on safety included a drug and alcohol policy that stipulated "an employee who is found to be under the influence on the job will be disciplined and may be dismissed for just cause without notice, pay in lieu of notice, severance, continued health care coverage or any indemnity being provided whatsoever." The policy also said employees in safety sensitive positions who had addictions to alcohol or drugs that could lead to on-duty impairment had a duty to inform the company so it could take steps to help the employee deal with the addiction and ensure safety in the workplace. Kish was given a copy of the manual containing this policy when he joined LDM Yorkton in the summer of 2009. LDM Yorkton's safety efforts also included an annual safety training day that all employees had to attend, along with weekly meetings of management to review safety performance and daily staff meetings to review safety and the previous CAUSE day's production. All shift leaders like Kish were required to discuss safety with their crew prior to the start of their shift. Tired employee had a drink before leaving for work In T h is I s s u e ASK AN EXPERT: Employee chooses to ignore safety policy • Termination packages CASES AND TRENDS: Canadian work experience not a basis to refuse jobs 2 3 CASE IN POINT: Family business owners get over $1.1 million for dismissal 4 YOU MAKE THE CALL: A grievance for grieving employees 8 Unapproved moment of silence on production line not just cause Kish was scheduled to work an evening shift on Feb. 25, 2012, during which he would be the acting plant manager. The night before, he didn't get much sleep because he had a young child who was teething and was up most of the night. When he woke up before his shift, he decided to have a glass of hard liquor. He claims he had one drink but didn't measure the amount. On his way to work, Kish's car went off the highway into a ditch, but he wasn't injured. When police arrived, they detected alcohol on his breath. Kish said he had only one drink but nothing to eat that day. Kish gave a breath sample and his reading was 0.045 mg per 100 ml, below the legal limit but within the range — 0.04 to 0.08 — to suspend his driver's licence for 24 hours. That level of alcohol was known to cause some level of impairment for operating vehicles or heavy machinery, according to the police. The test was taken about 20 to 25 minutes before the scheduled start of AN ONTARIO company did not have just cause to dismiss an employee who took a moment of silence to recognize a tragedy, an arbitrator has ruled. James Fletcher was employed as a cutter in a Guelph, Ont., meat production facility operated by Cargill, a producer and marketer of food and agricultural products and services. On Dec. 15, 2012, Fletcher arrived at the plant before his shift and asked the operations manager to hold a moment of silence to honour the victims of the tragedy that took place at Sandy Hook Elementary School in Newtown, Conn., the day before. The manager said that the company would not observe a moment of silence because, it wasn't possible to honour the victims of all tragedies with a separate moment of silence for each. The moment of silence on Remembrance Day served to honour all victims and fallen, said the manager. Fletcher was Continued on page 6 Continued on page 7

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