Canadian Employment Law Today

Canadian Employment Law Today Canadian Employment Law Today | | 7 Canadian HR Reporter, a Thomson Reuters business 2014 More Cases More Cases would fi re the co-worker and "you will get blamed for it." About 30 minutes later, Py- latuk received a call from the co-worker say- ing she had dropped Mullie off at home as she felt she wasn't capable of working. e other employee was too inexperienced to handle the job on her own, so Pylatuk had to scramble to fi nd another worker, eventually pulling one from another job. Pylatuk wrote a letter of reprimand for Mullie and called her to tell her to pick it up, telling her she was suspended for fi ve days. On June 12, 2013, Mullie asked Pylatuk if she could take June 24 off for a camping trip. Pylatuk noted there were two large pack- ing jobs that day, so he refused the request. He reminded Mullie that late June was the busiest time of year because of the end of the school term and leave wasn't usually grant- ed. Mullie then told him she was going to call in sick that day. Pylatuk responded that if she did, she "would be in bigger trouble." Later that day, Mullie got into an argu- ment with Pylatuk and another branch manager over the day-off request, cutting them off and pointing her fi nger at him. Mullie testifi ed she had asked for June 24 off one month prior and Pylatuk had agreed but changed his mind when she reminded him. She also said he shouted at her to get out of his offi ce and shoved her out. Pylatuk de- nied he shouted or touched her. Two other employees who were there also didn't recall such events happening. Pylatuk wrote a reprimand letter that stated if Mullie didn't follow direction or disrespect him in the future her employ- ment would be terminated. e next morn- ing, when Mullie was outside smoking with other employees, Pylatuk came out and told her she was being dismissed and not to come back inside the building. No letter of termination was provided and Mullie de- nied receiving the letter of reprimand. e adjudicator found Mullie's leaving of work and having her co-worker drop her off at home without calling her manager was insubordination. e adjudicator also found her demanding of a day off in June was insubordination, and Pylatuk's reason for refusing was reasonable — and within his management right to use his discretion. "(Mullie) was argumentative and accusa- tory towards him. I therefore fi nd that she was insubordinate," said the adjudicator. However, the adjudicator considered the fact Mullie had fi ve years without previous discipline while working for Jay's, and the fact she was upset and felt unable to work on April 17 mitigated her actions somewhat. As for her vacation request, the adjudicator found it unlikely the company previously agreed to the day off , since it was at the com- pany's busiest time. Either way, Mullie acted aggressive and insubordinate towards the managers while they remained calm, said the adjudicator. e adjudicator found that although Mul- lie was insubordinate on both occasions, her conduct did not "strike at the core of the working relationship" and wasn't just cause for dismissal. In particular, the adju- dicator wondered why Pylatuk didn't follow through with the second reprimand letter and instead proceeded to terminate Mul- lie's employment the next day. By not pro- viding Mullie with the letter, Pylatuk didn't give Mullie an opportunity to improve her behaviour before being dismissed. In addition, the adjudicator found the manner in which Jay's terminated Mullie's employment was inappropriate. He should have done so in private, rather than ap- proaching her outside in front of co-work- ers and telling her not to come back inside, said the adjudicator. Jay's was ordered to pay Mullie two weeks' pay in lieu of notice, equal to $1,000. Be- cause of Mullie's insubordinate conduct, she wasn't entitled to anything more than the minimum two weeks' notice under the Canada Labour Code. See Mullie and Jay's Moving & Storage Ltd., Re, 2014 Carswell- Nat 1196 (Can. Adj.). Moving on « from INSUBORDINATION on page 1 Positive urinalysis drug test not grounds for dismissal: Arbitrator CP RAIL did not have just cause to dismiss an engineer who used marijuana two days before he was involved in a train derailment, an arbitrator has ruled. CP Rail had a drug policy and related procedures for its employees that stipu- lated using a "prohibited substance" while employed in a "safety critical position" was grounds for termination of employment. e railway employed various post-incident testing to determine if employees involved in a workplace incident had used drugs or alcohol. On Dec. 17, 2013, there was a train derail- ment involving a locomotive engineer who had been with CP Rail since 1984. Over his 29 years with the railway, the engineer had no incidents of discipline on his fi le. CP Rail followed its normal procedures and sent the engineer for three diff erent tests: breath, oral fl uid, and urine. e tests of his breath and oral fl uid came back negative, but his urine test was posi- tive. Because of this positive test, a formal investigation was scheduled for Jan. 31, 2012. e engineer was interviewed for the in- vestigation and he admitted to using mari- juana at a Christmas party two days before the incident. CP Rail accepted this meant the engineer wasn't impaired when he re- ported for work two days after using the drug, but it still violated its alcohol and drug policy — which prohibited any use of drugs while in such a position. e engineer's em- ployment was terminated. e arbitrator found CP Rail's policy that a positive drug test was itself grounds for discipline or discharge was "unreasonable and beyond the well accepted standards." e purpose of the policy was to prevent workplace impairment but the tests weren't proven to show current impairment, said the arbitrator. e arbitrator referred to a similar case in which another CP Rail employee with a pos- itive test had his dismissal rescinded and a 30-day suspension substituted. In that deci- sion, the arbitrator stated the policy had "no basis in science or technology with respect to impairment or the risk of impairment on the job" and didn't further the railway's "le- gitimate business interests." CP Rail was ordered to reinstate the en- gineer with compensation for all wages and benefi ts lost. e arbitrator noted CP Rail disagreed with the reinstatement and the railway said the arbitrator and the union must "bear the burden of responsibility" for any future incidents that threaten public safety because of drug or alcohol use by the engineer. e arbitrator stated the decision was based on the facts and the law and had nothing to do with what could happen in the future, scolding the railway for trying to "infl uence the outcome of a grievance in its favour by resorting to veiled threats of legal consequences against the arbitrator." See Canadian Pacifi c Railway and Team- sters Canada Rail Conference (Gardippe), Re, 2014 CarswellNat 929 (Can. Railway Of- fi ce of Arb. & Dispute Res.). Although the worker was insubordinate, her conduct did not 'strike at the core of the working relationship.'

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