Canadian Employment Law Today

March 19

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 time cards. The new clock arrived on Dec. 18 and was installed. It was tested and everything was working fi ne. How- ever, about six hours later, towards the end of the day, the assistant manager tried to punch out but found the clock "gummed" up. More of the sticky white residue was found in the clock. How- ever, Safeway was able to get the clock running again. Safeway decided to install a motion- activated hidden surveillance camera at the time clock. On Dec. 30, 2012, the assistant man- ager punched out at 5:10 p.m. and went home. At 6 p.m., another employee went to punch out and the time clock didn't apply the time stamp. Her card also came out damp on the bottom and she noticed a white powder on one side of the slot. She also saw a small white Styrofoam cup sitting on a shelf across from the time clock that had a white powder line inside, like coffee creamer. Another worker found the time clock to be dripping "white opaque liquid" from the bottom and also noticed the cup with white powder inside. Safeway reviewed the time cards for the day and Miljevic's card showed he punched out at 5:48 p.m., though he had scratched it out and manually fi lled in a different time. Another employee's card had been punched at the time on the video footage. The surveillance footage was re- viewed and Miljevic was seen stand- ing at the time clock. He removed two time cards and punched one. He then obtained a Styrofoam cup from the em- ployee room and set it on a counter op- posite the time clock. He came back, took the cup and went to the time clock. He left again, then returned and placed the cup on the shelf. However, while he was at the time clock, his back was to the camera so it wasn't clear what he was doing. Safeway interviewed Miljevic and told him the surveillance footage clearly showed him pouring liquid into the time clock. Miljevic said he had accidentally spilled the cup while he looked at his watch and he didn't report it because he didn't think the clock was damaged and he was worried they would think he was responsible for the previous vandalism. Safeway didn't show him the video. Safeway suspended Miljevic and, on Jan. 11, 2013, terminated his employ- ment for intentionally vandalizing com- pany property. In a grievance hearing, Miljevic ex- plained he had a cup of water and was looking to make tea for the trip home. He said he went back to the time clock because he thought he had punched the wrong card and wanted to check. He then went to the washroom, poured the cup into the sink and returned with a paper towel to wipe the time clock. The arbitrator found Miljevic spilled water with coffee creamer on the time clock on the day in question, which damaged the clock. Based on the next time card punched, the clock was non- functional for about 36 minutes after the spill. Though Safeway felt Miljevic's story was implausible — punching the wrong card, looking to make tea instead of go- ing home, not reporting the accidental spill — the arbitrator found the employ- er didn't have "clear, convincing and cogent evidence" to disprove it. All the video showed was Miljevic at the time clock with a cup and his back to the camera. It supported Miljevic's story as much as Safeway's contention that he intentionally damaged the time clock, said the arbitrator. The arbitrator also noted that Miljevic had worked for Safeway for 24 years without discipline. "(Miljevic's) claim of accident is thus consistent with the video evidence, the time of the incident, the small amount of water spilled and the modest amount of damage caused," said the arbitrator. Safeway was ordered to reinstate Miljevic with compensation for lost pay and a fi ve-day suspension for fail- ing to report the accident and damage to the time clock. See UFCW, Local 401 v. Canada Safeway Ltd., 2014 Carswel- lAlta 246 (Alta. Arb.). gency. Some useful resources include: the Ca- nadian Centre for Occupational Health and Safety (; the Govern- ment of Canada Travel Advisories direc- tory ( sories); and the Government of Canada embassy and consulate directory (http:// • Check-in protocol/employee track- ing — Regardless of where an employ- ee may be travelling, it is important the employer know her location at all times. Depending on the situation, the appropriate protocol could be as simple as sending an email upon arrival, up to and including GPS tracking on employ- ees and equipment. • Technology assessment — Consider what technology or other safety equip- ment is necessary. Smartphones and tablets are not merely convenient busi- ness tools — they can be crucial safety devices. At a minimum there should be confi rmation these devices will have service wherever the employee is travel- ling. If not, consider a contingency com- munication plan. An interdisciplinary TRMP team: There is a temptation to view travel risk man- agement as a human resources issue. While your HR department will be heav- ily involved, a comprehensive TRMP may require active participation from various players or departments includ- ing, for example, managers (who may be responsible for check-in protocols), IT (to ensure mobile technology is avail- able), and fi nance (to ensure suffi cient funding is in place). A written policy, applied and enforced consistently: As in the case of any work- place policy, to be of maximum benefi t a TRMP should be written, clearly com- municated and consistently enforced. It should also include a feedback compo- nent so that it can be improved on an on-going basis. An employee should sign an acknowledgment confi rming her understanding of the policy prior to de- parture, including that a violation of the policy may result in discipline, up to and including termination. Risk to employees associated with workplace travel is real and tangible. Fortunately, it can be managed with the strategic use of a TRMP tailored to the workplace. A TRMP will not only help to protect employees from a range of travel risks, but also serve as an invaluable tool if your organization is ever called upon to demonstrate that appropriate, protective steps were taken. For more information see: • R. v. Reliable Wood Shavings Inc., 2013 CarswellOnt 13260 (Ont. C.J.). Ryan Treleaven is a lawyer with Sherrard Kuzz LLP, a management-side employment and labour law fi rm in Toronto. He can be reached at (416) 603-0700 or visit www. for more information. Continued from page 3 Continued from page 1 Input from more than HR needed for TRMPs MORE CASES COMPILED BY JEFFREY R. SMITH

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