Canadian Employment Law Today

CELT Sept 18 2013:celt 467.qxd 13-09-13 10:58 AM Page 6 September 18, 2013 Information was collected for legitimate purposes ...continued from page 1 Kish's shift at the plant. Kish contacted LDM Yorkton and said he didn't have a car and was uncertain if he could make it to work that evening. The company made alternate arrangements to cover for him, with some additional expense. Kish met with the facility manager on Feb. 27 to discuss his absence. Kish denied having an alcohol problem and another meeting was scheduled upon his return to work after on March12 after a scheduled vacation. Kish was back to work a little earlier than expected and the meeting with the facility manager took place with the operations administrator also attending. They told Kish he had put others who reported to him at risk by attempting to come to work with a certain level of impairment from alcohol and his employment was being terminated. He was offered a severance package of four weeks' pay and told he would have seven days to make a decision before signing the termination letter and release. Kish was surprised because he expected a suspension or some other discipline, but he took a few minutes to read the letter and release right then, saying it was his mistake. Kish filed a Canada Labour Code complaint for unjust dismissal. He acknowledged when he left for work that day, he didn't appreciate the extent of his impairment and it would have been inappropriate for him work. Once he realized it after the breath test, he called in to say he couldn't make it, not because his licence was suspended, he said. He claimed he wasn't treated fairly under the company's drug and alcohol policy — dismissal was excessive when he should have been offered support and counseling for addiction, particularly since he had a good safety record. The adjudicator noted that Kish could not have known the potential remedies available to him without independent legal advice. Though LDM Yorkton explained that he had seven days to go over the severance agreement and Kish willingly signed it, the adjudicator found Kish's consent was uninformed. "Employers should be mindful that the uninformed signing of a settlement agreement or release by an employee involving the surrender of legal rights of which he/she is not aware may not be accepted as final and binding upon the employee," said the adjudicator. Seriousness of misconduct was clear However, LDM Yorkton had a written drug and alcohol policy — of which Kish and other employees were aware — that stated employees who are found to be impaired at work would be disciplined and possibly dismissed. Kish was in a safety sensitive position around heavy machinery and dangerous chemicals and supervised crew working around them. Consuming alcohol right before his shift was "a serious safety violation, potentially jeopardizing the safety of himself, his crew and the plant." The adjudicator also noted Kish's argument that he didn't appreciate his impairment until the breathalyzer test was contradicted by an email to a coworker on the earlier shift saying he fell asleep at the wheel and had "a couple of drinks before work. Not good." Though Kish was "sincerely remorseful," the adjudicator found it was "difficult to rationally explain his actions and thereby gauge the risk to reoffend," particularly since he denied to his employer that he had an alcohol problem. Ultimately, LDM Yorkton had just cause to terminate Kish's employment because of his serious safety policy violation, said the adjudicator. "In the absence of some rational explanation which could reasonably lead me to conclude that this type of act is not likely to be repeated, I am left to conclude that Mr. Kish either intentionally or very recklessly made the decision to consume alcohol immediately prior to attending work," said the adjudicator. CELT For more information see: ■Kish and LDM Yorkton Corp., Re, 2013 CarswellNat 2895 (Canada Labour Code Adj.) Use competency-based methods to evaluate skills ...continued from page 3 •Asking for local references only Advice for Ontario employers Given the tribunal's consistent use of commission policies in its interpretation and application of the code, Ontario employers are wise to take note of the practices recommended in the Canadian experience policy in designing their own external and internal recruiting procedures. 6 However, as with virtually all code requirements, it is not enough to ensure the outcome of a recruiting process is compliant. It will be equally important that an employer document the process used to achieve the compliant result. This includes retaining copies of all job postings or advertisements and any documents demonstrating it assessed every candidate's qualifications and experience objectively and without regard to where the qualifications or experience was obtained. CELT ABOUT THE AUTHOR Erin R. Kuzz Erin R. Kuzz is a lawyer with Sherrard Kuzz LLP, a managementside labour and employment law firm in Toronto. Erin can be reached at (416) 603-0700 (Main, (416) 420-0738 (24 Hour) or by visiting www.sherrardkuzz.com. Published by Canadian HR Reporter, a Thomson Reuters business 2013

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