Canadian Employment Law Today

August 20, 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 | 7 Canadian HR Reporter, a Thomson Reuters business 2014 Cases and Trends Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2014 Canadian HR Reporter, a Thomson Reuters business 2014 tentially dangerous situations. After being hired as a spinning tech- nician in 1998, the worker progressed through three levels of polymer technician with good performance reviews. ough he received a disciplinary notice in May 2011 for deviating from SOP with regards to opening a valve of the molten material, he continued in his position. On Aug. 29, 2012, the worker was on the job with a partner. Normal protocol dictat- ed that each employee would alternate do- ing the required checks of the receivers and vents and record it on the check sheet. e vent condenser wasn't operational so only the receivers needed to be checked. Midway through the shift, the supervisor discovered the check sheet had not been completed on the previous three two-hour intervals. e worker said he had made the required checks but hadn't recorded them on the check sheet because he thought it wasn't necessary without the vent condens- er operating. e supervisor didn't accept this expla- nation, as the molten material still filled the receivers even when the vent condenser wasn't on and it still needed to be checked and recorded — something the worker should have known since he worked in the polymer area for three years. e worker and his partner were advised to fill out the check sheet going forward. In a followup discussion, the worker ac- knowledged he had to record his checks every two hours and made "a bad decision" by neglecting to do just that. However, the worker also said "chatter" among his co- workers and an "impression from a senior operator" led him to believe it wasn't nec- essary to follow the SOP. In addition, the worker claimed the crew on the shift before him didn't complete the check sheet but he didn't want to advise the supervisor before speaking with them — he didn't want to be a "rat." Because this was the second time the work- er hadn't followed the SOP, Invista decided to suspend him for one day and demote him to his former position of spinning technician — which had no elements of self-management and no duties involving chemicals. e union did not dispute the suspension but challenged the demotion as too harsh a penalty for an error in judgment the worker immediately acknowledged. e arbitrator noted that there was "little doubt the union and its members are well aware of the employer's efforts to obtain compliance with its safety standards." ough the worker characterized his mis- conduct as "an error in judgment," he com- pounded the problem with an excuse that didn't make sense — the vent condensers were off-line so he didn't think it was nec- essary to record the checks — or follow the SOP. is excuse fell by the wayside when the worker said other employees indicated it didn't need to be done, so he went along with it — a "cavalier attitude" that took the worker's misconduct "to a new level," said the arbitrator. e arbitrator found the collective agree- ment recognized demotion as an accepted form of discipline and the failure to follow the SOP is misconduct worthy of serious discipline, particularly for a second offence, and also served the purpose of a deterrent to other employees for similar misconduct. "It is not acceptable when dealing with matters of safety for the workforce to 'go rogue' in respect of very clear directions re- garding policies and procedures having to do with a substance as potentially danger- ous as (the molten chemical used in produc- tion)," said the arbitrator. "By not resisting the tug of group dynamics in the context of an important safety matter, the (worker) has demonstrated a lack of trustworthiness and an irresponsible attitude which undermines his competence to perform the job of poly- mer technician." e grievance was dismissed. See Invista (Canada) Co. and Kingston In- dependent Nylon Workers Union (Currie), Re, 2014 CarswellOnt 7160 (Ont. Arb.). Worker displayed 'cavalier attitude' « from DeMotioN on page 1 « from JourNeY on page 3 employers not immune from home country labour laws At the same time, as seen in the L'Oréal case, if a local employment contract in a foreign country stipulates severance of all ties from the home base and strictly limits the con- tract to a local jurisdiction, that does not render the home base employer immune from the applicability of home country reg- ulations that are mandatory under the home labour law or in relevant laws ensuring the stability of public order. Not only should employers clearly identify the applicable sets of laws but they should keep informed of any local rules that could potentially nullify provisions of a work con- tract or give a terminated employee an oppor- tunity to sue in civil courts. Terminating an employee always involves costs, but the emotional and monetary ex- penses associated with terminating an expat can be far greater. To minimize the risk, get sound advice so the end of an expatriation does not turn into the beginning of a long and costly journey. Julie Lessard is a partner at BCF Business Law in Montreal. She can be reached at (514) 397-2260 or Julie lessArD Home country laws could come into play employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog includes a tool for readers to offer their comments, so discussion is welcome and encouraged. The blog features topics such as discrimination, sick leave management, mobile technology and privacy, and the scope of workers' compensation. You can view the blog at

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