Canadian Employment Law Today

October 16, 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 Oct 16 2013.qxp:celt 467.qxd 13-10-04 8:58 AM Page 8 October 16, 2013 Sleepy flight attendant gets wings clipped THIS INSTALMENT of You Make the Call features an airline flight attendant who was fired after sleeping on the job. Karine Levesque was a flight attendant for Jazz Aviation, a Canadian airline. She was hired in September 2005. In early March 2011, Jazz received a report from another flight attendant who worked with Levesque on a flight crew for three days. The report accused Levesque of misconduct during flights that violated the airline's policies and could have caused safety risks. The co-worker claimed Levesque had opened liquor bar seals while still on U.S. Published biweekly 22 times a year Subscription rate: $299 per year Customer Service Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: Carswell.customerrelations@ Website: Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Publisher: John Hobel Managing Editor: Todd Humber Editor: Jeffrey R. Smith E-mail: ©2013 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. We acknowledge the financial support of the Government of Canada, through the Publications Assistance Program (PAP), toward our mailing costs. GT #897176350 Publications Mail Registration No. 40065782 8 How would you handle this case? Read the facts and see if the judge agrees soil, watched movies in the cabin's jump seat and not serving customers to the full requirement. Additionally, Levesque reportedly fell asleep in one of the designated crew seats. Jazz management met with Levesque and she denied sleeping while on duty. However, she later admitted she "may have closed her eyes at one point." Jazz gave her a letter of warning on May 16, 2011. Nearly a year later, Jazz received another report from a flight attendant who worked with Levesque. This flight attendant also said Levesque was sleeping on duty on April 22. 2012. According to the co-worker, Levesque performed initial customer service before sitting down in the jump seat facing the passengers in the cabin. Shortly after, Levesque appeared to be sleeping and a passenger took a photo of her in the prone position. Another passenger was overheard saying Levesque didn't look very professional. Management met with Levesque on April 27, but she was evasive and uncooperative. She was given the opportunity to provide a written response a week later, but she continued to deny any misconduct. She then suggested the other flight attendant may have "misinterpreted the situation," but allowed that she may have "exhibited less than proper judgment." Jazz was concerned since its flight attendant manual clearly stated "you must always be alert, never compromise safety." Jazz felt Levesque's denials rang hollow, given her evasiveness. It also had no reason to disbelieve the reports. It determined Levesque had breached safety and service regulations and the "vital bond of trust" between employer and employee. Jazz terminated Levesque's employment on May 24, 2012. The union grieved the dismissal, arguing Levesque was "a loyal, conscientious and dedicated" employee who hadn't planned to fall asleep. It pointed out much of her performance issues were caused by stress from her parents' health issues. Since the misconduct was separated by nearly a year and wasn't intentional, the union argued the employment relationship was not irreparably damaged. You make the call ✓ ❑ Should Levesque have received lesser discipline for falling asleep on duty twice? OR ✓ ❑ Did the airline have just cause for dismissal? IF YOU SAID Levesque should have received lesser discipline, you're right. The arbitrator found the evidence made it reasonable to believe Levesque was sleeping on the April 22 flight and there was intent. The union's claim she hadn't planned to fall asleep was not likely, said the arbitrator. The arbitrator also found Levesque's evasiveness contributed to her termination. Had she accepted responsibility, it was likely she would have "been in line for a disciplinary response from the employer comprising a suspension of some length." However, the arbitrator also found Levesque acknowledged in the hearing she would treat her duties more seriously if given another chance and she expressed remorse. There were also factors to which her misconduct could be attributed, so there was a chance the employment relationship could be salvaged, said the arbitrator. The arbitrator ordered Jazz to reinstate Levesque but with "a series of meaningful conditions" to ensure she understood the importance of improving her conduct, to be agreed upon management and the union. See Jazz Aviation LP and Canadian Flight Attendants Union (Levesque), Re, 2013 CarswellNat 3068 (Can. Arb.). Published by Canadian HR Reporter, a Thomson Reuters business 2013 CELT

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