Canadian Employment Law Today

February 5, 2014 Worker refused to say he wouldn't repeat behaviour Continued from page 1 comments" about the finance manager. He replied yes, "if it was warranted." When asked if he would do it again, Boogerman also responded in the affirmative. Boogerman didn't express regret and refused to write letters of apology to the finance manager and the executive director. On Nov. 5, 2012, CLM terminated Boogerman's employment for "significant and unacceptable misconduct." The arbitrator accepted that Boogerman "engaged in culpable misconduct deserving of some discipline" with insolent comments directed at the finance manager and the executive director through emails sent to several people. However, the comments at the first aid session were not on the same level as it was not the same as saying he wished the finance manager was having a heart attack, said the arbitrator. The arbitrator acknowledged Boogerman admitted he used derisive names for CLM executives in his emails and he was trying to get disciplined as his issues arose from disagreements about how the collective agreement should be administered. However, he miscalculated how seriously CLM would take his misconduct and the employer terminated him rather than use lesser discipline. ASK AN EXPERT Continued from page 2 to the applicant." The tribunal instead ordered the employee to complete the Ontario Human Rights Commission's online training program and to provide written conformation to her co-worker upon completion of the program. Although the co-worker did not include his employer as a respondent, employers can nonetheless be held vicariously liable for the actions of their employees, even if they are not directly involved in the misconduct. As discussed above, a proper social media policy can shield employers from vicarious liability in such situations. Working notice and total notice period Question: If an employee is given notice of termination well in advance, does 6 The arbitrator found CLM didn't follow a progressive discipline route and didn't warn Boogerman his employment was in jeopardy. The first couple of incidents resulted in a verbal warning but no official discipline, and he was only warned of future discipline, not termination, said the arbitrator. "There is no doubt the employer effectively advised Mr. Boogerman of some potential disciplinary consequences, should his misconduct persist," said the arbitrator. "However, before the discharge, the employer did not make it clear to Mr. Boogerman in sufficiently precise terms that if he engaged in similar future behaviour, he would potentially face a disciplinary response up to and including discharge." Though Boogerman didn't express any regret for his misconduct or say he wouldn't do it again, the arbitrator felt these concerns could be tempered by reinstatement terms that stipulated he not repeat such behaviour. CLM was ordered to reinstate Boogerman with a five-day unpaid suspension. This reinstatement would be conditional upon Boogerman's writing of "unqualified apologies" to the finance manager and the executive director and no repeat misconduct for 24 months. Failure to meet those conditions would result in his dismissal. Failed to meet terms of reinstatement the amount of working notice affect the overall notice entitlement? For example, if an employee is told in November that she will be let go at the end of the year (allowing for the employee to make preparations and say goodbyes) as opposed to being removed from the workplace the same day, is there any difference in entitlement? time next year, or that it is possible the company may close, does not constitute notice at law. The notice period will only begin running once definitive notice which contains an unambiguous termination date is provided. Answer: The simple answer is that there is no difference, and no "discount" if you provide notice. By law, employers are required to provide either notice of termination (working notice) or pay in lieu thereof; the choice is typically the employer's. However, the determination of how much notice or pay in lieu to which an employee is entitled is the same regardless of how it is provided. As discussed in great detail in other contexts, this will be determined by a combination of employment standards legislation, common law, and contract. One thing important to remember is that if an employer is going to provide notice, it must be clear and definitive. In other words, simply advising an employee her employment may end some- A few days after the decision, Boogerman sent his apologies. In the one to the executive director, he wrote: "In the future, if I decide to reveal that you are a misplaced, incompetent executive director, I will do so using the grievance process." In his letter to the finance manager, he wrote: "If I decide that you are a lying, thieving sociopath, I will do so using the grievance process." CLM informed Boogerman his "apologies" did not meet the conditions of his reinstatement and terminated his employment once again. The union argued Boogerman should be given another opportunity to write apologies that complied with his conditions, but the arbitrator denied this request and dismissed the grievance. "By his further conduct in the form of his so-called 'apologies' to (the executive director and the finance manager), Mr. Boogerman has now clearly demonstrated that he is an incorrigible employee, insofar as his continuing insolence toward (the finance manager and the executive director)." For more information see: •Community Living Meaford and OPSEU, Local 235 (Boogerman), Re, 2013 CarswellOnt 15760, 2013 CarswellOnt 15759 (Ont. Arb. Bd.). For more information see: •Chatham-Kent (Municipality) v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 127, [2007] O.L.A.A. No. 135 (Ont. Lab. Arb.). • Wasaya Airways LP v. Air Line Pilots Assn., International, [2010] C.L.A.D. No. 297 (Can. Lab. Arb.). • Perez-Moreno v. Kulczycki, 2013 HRTO 1074 (Ont. Human Rights Trib.). Stuart Rudner is a founding partner of Rudner MacDonald LLP, a Toronto-based employment law firm. 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. Stuart would like to thank Patrick Pengelly for his assistance in the preparation of this article. Published by Canadian HR Reporter, a Thomson Reuters business 2014

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