Canadian Employment Law Today

CANADIAN EMPLOYMENT LAW TODAY MORE CASES COMPILED BY JEFFREY R. SMITH ...continued from page 1 request was approved, though she didn't decide on any specific dates at that point. Gorman had also been looking for another job closer to her family and she eventually found one. She was hired in December with a start date of Jan. 14, 2013. Gorman told her manager she would be leaving and wanted to use her eight carryover vacation days following her existing vacation days, starting on Jan. 2. She also provided a letter of resignation stating her last day of work would be Jan. 11, 2013, and she would be using her carryover vacation days from Jan. 2 to Jan. 11. The town had some issues with Gorman's resignation letter. In it, she didn't indicate when her last day worked would be and it didn't want to allow her to book vacation days after her last day worked. The town's HR manager suggested it would pay Gorman a lump sum on her final paycheque for any unused vacation. Gorman was told she had to work at least one full day after her vacation and she had to work both before and after statutory holidays in order to be paid for them, as per employment standards legislation. If she didn't come in and her last day worked was Dec. 21, then she would be paid for her outstanding vacation days but not for the holidays, the town said. A few days before her last day before her vacation, the town filed a record of employment that indicated Gorman's date of resignation was Dec. 21. Gorman also told many people that she was leaving as of that date. She received a final paycheque on Dec. 21, and filed a grievance claiming the town unilaterally changed her resignation date without her approval. The arbitrator found Gorman informed the town that her resignation date was Jan. 11 and she would be using vacation days — some already booked, some still to be used — up until that date. Though the town advised there were problems with vacation and statutory holidays, it didn't actually tell Gorman that if she didn't work at least one day after Dec. 21, it wouldn't process her resignation as she gave it. In addition, Gorman never agreed to change her date of resignation to Dec. 21 throughout the dispute over her vacation days, said the arbitrator. "The evidence and agreed facts do not establish that (Gorman's) actions in declining to return to work for a day after her last day of vacation, whenever that turned out to be, indicated any intention to resign, retire or abandon her work prior to Jan. 11, 2013," said the arbitrator. The arbitrator found the Town of Whitby unilaterally changed Gorman's date of resignation, effectively terminating her employment as of Dec. 21, 2012, rather than waiting until her stated date of resignation. See Whitby (Town) and CUPE, Local 53 (Gorman), Re, 2013 CarswellOnt 9515 (Ont. Arb. Bd.). CELT High standard of conduct for health care workers ...continued from page 7 arbitrator. However, the arbitrator found most of the incidents likely happened as described; in particular the first incident of muffling the yelling patient and swearing at the patient who urinated. In addition, Solodky not only denied this serious allegation, but tried to blame a co-worker. However, she was vague by simply saying her partner wasn't innocent, at a time when she "urgently needed to be clear if she was accusing someone else," said the arbitrator. High standard of conduct The arbitrator acknowledged that a higher standard of conduct is expected from employees in the health care field than in other occupations and, though the type of patient in Bethany Care's facilities could "tax the patience and self-control of the most considerate caregiver," they were also exceptionally vulnerable and dependent on their caregivers. Health care aides worked with little supervision, so the trust of the employer was essential, said the arbitrator. "If an employee has given reasonable cause to believe that he or she is not capable of maintaining appropriate levels of self-control and exhibiting proper conduct toward residents, the public interest weighs in the direction of treating the misconduct as just cause for dismissal," said the arbitrator. Though such misconduct doesn't automatically mean dismissal and may sometimes call for progressive discipline — as in the other incident cited by the union — the arbitrator found "the facts speak of a developing pattern in (Solodky's) behaviour, a hardening of attitude toward these residents about which management can rightly be very concerned." This concern that Solodky could continue her misconduct was reasonable and provided just cause for dismissal. The grievance was dismissed. See Bethany Care Society and AUPE (Solodky), Re, 2013 CarswellAlta 1525 (Alta. Arb. Bd.). CELT WEBINARS Interested in learning more about employment law issues directly from the experts? Check out our live and on-demand webinars discussing topics such as managing termination, dealing with difficult people, employment agreements, rebuilding workplace culture, and building a strong employer brand. To view the webinar catalogue, visit www.employmentlawtoday.com/ webinars. Published by Canadian HR Reporter, a Thomson Reuters business 2013 11

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