Canadian Employment Law Today

February 19. 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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CANADIAN EMPLOYMENT LAW TODAY Published by Canadian HR Reporter, a Thomson Reuters business 2014 7 ing a knife inside. He brought Campbell back to their apartment, where his wife asked, "why us?" Campbell replied that is was because of her job and the situa- tion with the client next door. The neighbours called the police and an offi cer observed a scratch on the car from "one end to the other" on the driv- er's side, which ended up costing $1,700 to repair. The neighbours didn't observe any indications of intoxication, but the police offi cer reported that he "could smell an odour" and Campbell had bloodshot eyes. Campbell was charged with mischief and jailed for the night. The director of the agency learned of the incident and spoke to police. She held an investigation meeting at which Campbell provided limited answers to her questions. Campbell claimed she was walking down the road when some- one attacked her, took her to an apart- ment and called the police. She also said she wasn't allowed to give information on the advice of the union. The director considered this miscon- duct serious, since it was related to a client and Campbell's job, which in- volved working independently in cli- ents' homes. She also felt the incident was ground for termination, regardless of Campbell's previous suspensions and the criminal charge — for which Campbell was later convicted. In addi- tion, Campbell didn't apologize for her actions, though she later admitted the union encouraged her to do so. Camp- bell's employment was terminated. The union grieved the termination and, in the hearing, Campbell admit- ted to damaging the car, which led to a sentence of 12 months probation. She said she had no intent to harm property but it was a spur-of-the-moment action caused by frustration with an escalation of the story of her sleeping in the cli- ent's home and the fact she had been drinking. She apologized to the agen- cy and the neighbours, saying she felt "ashamed and embarrassed." She also said the termination had hurt her career, since it was a small community and the incident was known throughout. The arbitrator noted Campbell's ac- tions occurred off-duty and "what an employee does on her own time will generally be of little or no interest to the employer." However, there was a clear link between Campbell's conduct and the agency's interests, since it was spurred by a work-related incident. The arbitrator also pointed out this was an isolated incident unrelated to her previous discipline and her unre- sponsiveness in the interview was un- derstandable given the charges. Also, though she didn't initially apologize, Campbell expressed remorse and under- standing of the seriousness of her ac- tions in the hearing, said the arbitrator. However, the arbitrator found it must balance "the employer's legitimate in- terests" with those of the employee. Campbell's misconduct was directly re- lated to the agency's interest, breached the agency's trust, and "was suffi ciently signifi cant and serious as to rupture the relationship between them, and render her continuing employment impos- sible." Campbell's termination was up- held. See Inverness County Home Sup- port Agency and NSGEU (Campbell), Re, 2013 CarswellNS 1039 (N.S. Arb.). Indefi nite layoff was a termination but offer to return was legit: Court A BRITISH COLUMBIA company wrongful- ly dismissed an employee when it laid him off indefi nitely, but the employee should have accepted an offer to return to his position after threatening legal ac- tion, the B.C. Supreme Court has ruled. Clarence Hooge, 59, was a production supervisor at a lumber mill in Chilli- wack, B.C., operated by Gillwood Re- manufacturing. He began working at the mill in 1975 and continued without a break through three ownership changes, though he had no written employment contract. When Gillwood took owner- ship of the mill in 2011, Hooge contin- ued to work in the same position he had been in under the previous ownership. In the four years previous to Gillwood taking over, production had fallen signif- icantly. Some supervisory personnel had been let go, but Hooge remained as one of two production supervisors. In 2010, the mill was sold and the old owner provided Hooge with a record of employment (ROE) indicating a last day of service and that he had worked at the mill since 1975. However, the new owners took all of the existing staff with their pay and benefi ts, changing only their holiday entitlement and medical provider. These owners sold to Gillwood in July 2011, providing Hooge with an ROE covering June 2010 to July 2011. Gillwood told staff they would all be kept on and Hooge asked if there would be a written employment offer. Gillwood replied it could provide one but didn't. On Aug. 6, 2011, Hooge's supervi- sor informed him he was being laid off indefi nitely and his last day of work would be Aug. 12. Hooge asked when they planned on calling him back and was told there were no plans. Gillwood provided Hooge with an ROE indicating the reason was "shortage of work" with an unknown date of recall. Hooge sought legal advice and in- formed Gillwood he considered the indefi nite layoff to be a fundamental breach of the employment contract and hence a constructive dismissal, so he would be fi ling a claim for damages. A month later, on Sept. 19, Gillwood called Hooge and told him they had re- worked the schedule and needed him to manage the mill. It also sent him a let- ter stating "there was never an intent to terminate you." Hooge considered the offer and decided it was an attempt to avoid paying him severance. He rejected the offer and Gillwood sent him an ROE that stated Hooge had quit. The court found there was nothing to suggest there was a term of the employ- ment contract that provided for layoffs of the mill's employees and Hooge clearly "did not accept the layoff." It also found that while B.C.'s Employment Standards Act discusses the allowed length of tem- porary layoffs, it "appears to be quali- fying employment agreements in which the right to lay off already exists." Since Hooge's employment contract did not allow layoffs, his employment was ter- minated — and wrongfully so since no notice or pay in lieu was given. Since Hooge remained in continuous employment through the mill's owner- ship changes and Gillwood didn't tell its employees that it wouldn't recognize their prior service, the court considered Hooge to have 36 years of service at the time of his termination. This, along with his position and age, entitled Hooge to 18 months' notice, said the court. Hooge claimed he was targeted, his layoff was a professional embarrass- ment and his humiliation made it unrea- sonable to expect him to return to the mill. However, the court found Gillwood didn't treat Hooge poorly, facilitate any humiliation or otherwise create an ac- rimonious environment. Since the offer was for Hooge to return to his former position for the same pay, it was rea- sonable to expect Hooge would miti- gate his damages by accepting. Since he didn't, the court reduced his damages to nine months — the period covering fi ve weeks from his termination to the offer and the rest equivalent to a pack- age given to employees who were termi- nated in July 2012. The total value of the damages Gillwood was ordered to pay was $65,668.57. See Hooge v. Gillwood Remanufacturing Inc., 2014 CarswellBC 17 (B.C. S.C.). Continued from page 1 MORE CASES COMPILED BY JEFFREY R. SMITH

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