Canadian Employment Law Today

November 13, 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 November 13 2013:celt 467.qxd 13-10-25 10:56 AM Page 1 CURRENT NEWS AND PRACTICAL ADVICE FOR EMPLOYERS Bumped exec gets more than $100,000 New position with same salary but no defined role was a demotion: Court existed in the U.S. branch of the company. There was no job description, AN ONTARIO employer constructively budget, long-term goals or employees dismissed a senior manager when it to report to Jodoin, though his salary shifted him to another position with remained the same. Jodoin also had to the same pay but no defined role, the move out of his office and into a cubicle. Ontario Superior Court of Justice has Jodoin inquired about a job descripruled. tion but was unable to get one. In midHarry Jodoin was hired by Nissan January 2013, he said it would be Canada in November 2000 as a district difficult speaking to potential cussales manager in Montomers privately and quitreal. His employment etly without an office and CONSTRUCTIVE contract included a prosuggested working in a DISMISSAL vision that stated "as regional office nearby. He part of your long-term was told a spot for him career growth, the possibility of trans- would be found. fers to other locations does exist." Four On Feb. 15, 2011, Jodoin wrote to years later, he was promoted to mar- Nissan's president to say he had been keting representative manager and constructively dismissed and that he moved to Toronto, where he obtained preferred to have the company termithe highest rate of program completion nate his employment "with approprifor Nissan in North America. ate compensation" rather than be Jodoin was promoted again in 2007 shifted into a job without purpose or and became a national fleet manager. responsibility. The director of HR for His job title was changed in 2009 to Nissan's U.S. office responded by saysenior manager, retail sales and spon- ing the president wasn't satisfied with sorships, where he managed Nissan's Jodoin's performance and "believed advertising in both English and that this reassignment would provide French, as well as oversaw Nissan's you with the opportunity to take sponsorship programs with the Cana- advantage of your core strengths dian Football League and Cirque du which would ultimately benefit you Soleil. In addition, he oversaw Nissan's and the organization." She also said participation in auto shows. the plan was for Jodoin to "develop the position and the program." Senior manager moved Jodoin was surprised to hear this to newly created position because he had received positive perOn Dec. 22, 2010, Jodoin was told he formance reviews and no indication was being moved into a new role — there was any dissatisfaction with the senior manager of vehicle participa- job he was doing in his previous position programme (VPP). It was a new Continued on page 8 position for Nissan Canada, though it PM40065782 | BY JEFFREY R. SMITH | NOVEMBER 13, 2013 In T h is I s s u e ASK AN EXPERT: Responsibility for training costs • Changes in offer letter in final contract CASES AND TRENDS: Misconduct and addiction: When is cause enough? CASE IN POINT: Reigning in employee misuse of Internet and social media CASES AND TRENDS: Proactive HR auditing YOU MAKE THE CALL: Computer tech deleted for 'malicious' software 2 3 4 7 12 Past surgeries not a pattern of sick leave use: Adjudicator THE Correctional Service of Canada (CSC) unfairly placed an employee who missed time due to surgery on an attendance management program, an adjudicator has ruled. Russell Kirby was a correctional officer at Springhill Institution, a federal penitentiary in Springhill, N.S. Kirby was first hired in October 2006 and joined Springhill two years later. Kirby was a bobsledder and had sustained multiple injuries to one of his legs while competing. Before he began working at Springhill in late 2008, he had surgery that required significant recovery and rehabilitation. As a result, he had to take more than 300 hours of sick leave, which CSC granted. The amount of sick leave was more than he had banked, so he followed a CSC policy under the collective agreement that allowed him to Continued on page 11

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