Canadian Employment Law Today

October 30, 2013 Worker didn't get proper authorization to remove item from workplace ...continued from page 1 ager wouldn't formally allow him to take a damaged tire sling to his farm, but claimed the manager implied he would look the other way if Gervais took it. The manager denied making any such implication. Bullying and harassment As for his history with the two coworkers who made the complaint, Gervais indicated they were part of a group of employees at another facility who had abused and bullied him after he reported another employee's violation of lock-down procedure on a piece of equipment. The bullying became so bad that Gervais had to transfer to the Mildred Lake facility and take a lowerpaid position. However, the two coworkers later transferred to Mildred Lake and the harassment continued, said Gervais. Gervais also had other issues with Finning, including conflict relating to certain rules he felt were "stupid" and the amount of waste he perceived at Finning. Finning argued Gervais should not be reinstated, as the employment relationship was too damaged. It pointed to his displeasure with the company, his taking of Finning materials, is failure to report for his two shifts following The case was not about theft but more about a breach of the policy requiring a movement of goods form signed by a supervisor before removing items from the workplace. Stuart Rudner is a founding partner of Rudner MacDonald LLP, a Toronto-based firm specializing in Canadian employment law. He is author of You're Fired: Just Cause for Dismissal in Canada, published by Carswell, a Thomson Reuters business. He can be reached at srudner@rudnermacdonald.com. the incident, and his failure to clearly explain why he left early and went home. It also noted that there were uses for damaged tire slings and the company often broke them down to use in other things, though that particular one had been sitting around for a while. The court found the real issue was that Gervais made a mistake in removing the tire sling from the facility without proper authorization — a signed MOG form. This made it not about theft but more about a breach of policy, said the court. It went to say that because of this, there was no real evidence Gervais couldn't be trusted by co-workers and managers in his job. The court also noted Gervais did not receive much support from Finning for reporting a safety issue at the other facility and suffering harassment as a result. This contributed to his displeasure with the company, which was MORE CASES understandable and probably shouldn't be held against him, said the court. Ultimately, the court found Finning did not have "clear, convincing and cogent evidence" to show Gervais was guilty of theft of its property. There was no deception, as Gervais never tried to hide the fact he took the tire sling. There was no evidence he took anything else, despite the two co-workers' attempts to say otherwise. In fact, they had a vendetta against Gervais and he perceived their allegations "as another chapter in the continuing abuse" against him, which made him upset, said the court. The court also found Finning's investigation was fairly cursory, as it only interviewed Gervais and the manager he claimed to have approved his taking of the tire sling. He was also given no reason for his initial suspension or his termination at the time of either. "I accept (Gervais') explanation that he did think he had implicit authority to remove a condemned and discarded tire sling. Consequently he did not have the necessary mens rea or dishonest intent necessary to prove theft," said the court. "He never denied taking the tire sling, and in fact volunteered that he had it and never tried to hide that he had it." Finning was ordered to reinstate Gervais with a one-day unpaid suspension serving as discipline for his misconduct. Employment law blog ASK AN EXPERT ...continued from page 2 demands for information. CELT To view more cases from Canadian Employment Law Today's archives, go to www.employmentlawtoday .com and click on "Advanced Search." You can search for articles from past issues by entering keywords, the department or the article number. CELT For more information see: IFinning International Inc. and IAMAW, Local 99 (Gervais), Re, 2013 CarswellAlta 1474 (Alta. Arb.). Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog includes a tool for readers to offer their comments, so discussion is welcome and encouraged. Recent topics include the employee's role in accommodation, employment contracts, impairment at work due to sleepiness, legal trouble outside the workplace for an employee, and vacation before a resignation date. You can view the blog on www.employmentlawtoday.com. 8Published by Canadian HR Reporter, a Thomson Reuters business 2013

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