Canadian Employment Law Today

October 30, 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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CURRENT NEWS AND PRACTICAL ADVICE FOR EMPLOYERS Removal of company property a 'mistake,' not theft Employee claimed he thought he had permission but didn't follow proper approval procedure PM40065782 | BY JEFFREY R. SMITH | about the accusations as well as the denial of a leave he had requested due to stress-related issues. AN ALBERTA company should not have fired an employee for taking company No permission to take equipment materials without permission, an arbitrator has ruled. Gervais returned to work at the MilPhilippe Gervais, 36, worked at a dred Lake facility on May 30 and shop in Mildred Lake, Alta., run by Finning began an investigation. GerFinning International, a supplier of vais was told the company had been Caterpillar heavy duty construction told he was taking Finning property equipment based in and they wanted his side Edmonton. of the story. Gervais WRONGFUL On April 14, 2012, Geracknowledged he had DISMISSAL vais was working a shift taken an old and damset that was scheduled to aged tire sling which had end three days later. At the end of his been approved by a manager at the set, he planned to drive back to his time, since it was destined for the home in Manitoba with a second-hand garbage anyway. He acknowledged truck he had purchased near the Mil- that he didn't have a movement of dred Lake facility. goods (MOG) form for the tire sling. Two other employees reported that Gervais also said the complaint Gervais took Finning equipment and against him was a continuation of tools in his truck when he left the facil- harassment by the two co-workers ity that day. The co-workers said they which had began when they all worked told Gervais that if he was stealing at another Finning facility. from Finning he shouldn't do it in Finning suspended Gervais without broad daylight, which made Gervais pay and sent him back to camp. The upset. They took photographs of him manager in question was asked about in his truck and showed a manager, but the tire sling and he denied giving Gerthe manager said the photographs did- vais permission to take it. On June 1, n't show any Finning equipment in 2012, Gervais was terminated. When Gervais' truck. Gervais left his shift he asked why, he wasn't given a reason early and didn't show up on either of but was told "it would all come out at the next two days of his shift set. the grievance hearing." Instead, he drove home to Manitoba Once Gervais was given his tool box early. following his termination, he produced The service operations manager an MOG related to five damaged sent Gervais an email saying he had to slings, though it was unsigned by any talk to him about "a couple of things," manager. Gervais admitted the manincluding the theft allegations. Gervais responded by saying he was upset Continued on page 8 OCTOBER 30, 2013 In This Issue ASK AN EXPERT: Information in termination letter • Communication during leave CASES AND TRENDS: The rules of engagement: Restrictive covenants CASE IN POINT: Are you prepared for medical marijuana in the workplace? CASES AND TRENDS: Are interns being worked to death? YOU MAKE THE CALL: Federal department can't accommodate worker 2 3 4 7 12 Employer failed to stop harassment by customer A MANITOBA retail employer must pay an employee $7,750 for failing to curb harassment of the employee by a customer, the Manitoba Human Rights Commission has ruled. Emily Garland was a retail clerk for Grape & Grain, a beer and wine making supplies store in Winnipeg. She was hired in January 2009. Soon after Garland began working at the store, she reported that a regular customer began making sexual advances towards her, which she claimed she always rejected clearly. The harassment began as sexual comments about parts of her body and escalated into questions about her sex life and asking to see her underwear. On one occasion, Garland claimed the customer touched her breast, and on another he rubbed his lower body against her while Continued on page 11

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