Canadian Employment Law Today

February 5, 2014

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 Second chance wasted Employee reinstated after false allegations, insults against executives – but his 'apology' fell short PM40065782 | BY JEFFREY R. SMITH | AN ONTARIO employee deserved a second chance after getting fired for insolent behaviour towards his company's executives but failed to live up to the terms of it, an arbitrator has ruled. C. Boogerman was a counsellor for Community Living Meaford (CLM) in Meaford, Ont. He was hired in April 2004. In February 2011, the union took exception to documents and a related discrepancy regarding the Family Day holiday. On Feb. 28, Boogerman sent an email to employees in his bargaining unit with an attached letter from the union representative to CLM's manager of business and finance. Boogerman's email called the finance manager a "devious, untrustworthy person" who needed to be fired. He also accused the finance manager of stealing, short-changing and underpaying employees. Nine days later, CLM held an investigatory meeting with Boogerman and the executive director asked him why he circulated the email. He also stated the discrepancy had been checked out, the finance manager had rectified it immediately and CLM considered the matter resolved. Boogerman was warned it was not the appropriate way to address such errors and not to make such statements again or else he would face discipline. Boogerman responded by saying "bring it on" and the executive director told him he needed to conduct himself professionally or else there would be repercussions. There was no further discipline. Employee made accusations against finance manager On Jan. 31, 2012, Boogerman attended a grievance meeting with another union representative to deal with an unrelated issue. However, before they got to the grievance agenda, Boogerman began making accusations against the same finance manager, alleging the manager had committed fraud and stolen funds from CLM. He was immediately told to stop or face discipline as the accusations had nothing to do with the grievance FEBRUARY 5, 2014 In This Issue ASK AN EXPERT: Banning info from employees' social media • Working notice 2 CASES AND TRENDS: 12 months notice for employee fired without investigation 3 meeting, nor were they true. Boogerman again said "bring it on." At that point, Boogerman was told to bring any fraud concerns to the police. CLM did not issue discipline for Boogerman's conduct as it believed the union and Boogerman understood the severity of his allegations and he would stop. In August 2012, a union secretary sent an email to the finance manager, copying other union representatives including Boogerman. The email was regarding an invoice for direct negotiations with the employer — that should be employer-paid — with an incorrect date and charges. Boogerman sent an email to the finance manager and copied others using profane language and accusing the finance manager of "trying to screw either the union itself, or individual union members, out of money." He also hinted about telling members of the manger's church about his "unChristianlike activities," suggested retirement and referred to the executive director and the finance manager in derisive terms. Boogerman later testified he was trying to goad the executive director into disciplining him so he could shed light on what he felt was a toxic workplace in front of a neutral arbitrator. A meeting was scheduled for Oct. 30 but, before then, Boogerman sent an email to the executive director stating he hoped he would represent an employee in a grievance against him and and called him "Jeffy boy." Boogerman testified the tone and language of this email was inappropriate but he was trying to get a reaction. On Oct. 30, Boogerman and other employees were at a first aid training session. They heard an ambulance siren and when someone wondered what was going on, Boogerman said maybe the finance manager was having a heart attack. A meeting was held where Boogerman's emails and comments were discussed. Boogerman was asked if he had the right to make "personal and insolent A BRITISH COLUMBIA worker who refused to do a job with overtime hours because of his parental duties resigned his position and wasn't dismissed, an adjudicator has ruled. Frank Wagar was a picker operator for Pavlis Trucking, a road carrier and oilfield service company based in Dawson Creek, B.C. Wagar joined Pavlis in 2005 and was responsible for operating picker trucks at oil and gas job sites. In the fall of 2012, Wagar's marriage broke down and a joint custody agreement for his two children was reached in which each parent would have the children in alternating weeks. Wagar's job required overtime on occasion and when this happened, he had difficulty. Sometimes he would start work later than usual after dropping his children at school and made Pavlis aware when he had his children he couldn't work late. Pavlis accommodated his late arrivals by having another employee load and preprare Wagar's truck before he arrived on mornings he had his children. Late in 2012, Wagar decided to find work with more regular hours. He suggested he work part-time as a mechanic in the company shop. Wagar had no formal mechanic qualifications but had some skills, so Pavlis agreed to investigate the feasibility of his proposal. Continued on page 6 Continued on page 7 CASE IN POINT: Rocking the boat 4 YOU MAKE THE CALL: Employee's drinks get her in hot water 8 Worker made choice to end employment

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