Canadian Employment Law Today

October 01, 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 more Cases arm swinging sideways and accompanied by a banging noise. e employee had thought Kerkeni was trying to close the drawer, but after hearing about the damage, he realized Kerkeni had been hitting it. e co-workers reported it to Invista management. Kerkeni denied damaging any equipment and said he had been working on a fishing line when observed in the shop, using a hammer on top of the cabinet to hammer the hook. He also explained that when he had been overheard calling his co-workers "rats," he had been joking and the others had taken it as such. In addition, he said he had removed some of the water bottles from the fridge because he was managing the depart- ment's supply, which was one of his tasks. He denied having any grudges against the two co-workers. Invista management felt it had enough evidence that Kerkeni had in fact vandalized equipment and terminated his employment in September 2012. e arbitrator found little reason to be- lieve Kerkeni's explanations, as they were at odds with the reports of every other em- ployee involved. None of the employees had any reason not to tell the truth, and it wasn't credible that he was working on a fishing line when observed by the co-work- er — particularly since his arm was moving sideways, which was more likely to mean he was jamming and hitting the drawers, rather than hammering a hook in an up- and-down motion. e arbitrator also found it was likely Kerkeni bore a grudge against the two co- workers after the safety warning and the teasing note they left him. All the evidence led to the conclusion Kerkeni was guilty of the vandalism. ough Kerkeni only had the one instance of discipline, it had been established he had ongoing difficulty interacting with his co- workers. With the seriousness of his mis- conduct in damaging company equipment used by others and his refusal to acknowl- edge it, the arbitrator determined dismissal was justified. See Invista (Canada) Inc. and Kingston Independent Nylon Workers Union (K.I.N.W.U.) (Kerkeni), Re, 2014 Carswel- lOnt 10274 (Ont. Arb.). fiscal year of the employer prior to the severance of an employee's employment was $2.5 million or more. Accordingly, even where an employer's payroll fluctuates, liability for severance pay can arise if the payroll meets these threshold levels within one of the specified periods. A recent case of the Ontario Superior Court of Justice highlights how broadly Ontario's severance pay provisions may be interpreted by the courts. In Paquette c. Quadraspec Inc., the court considered the national payroll of the company in deter- mining that it met the $2.5 million thresh- old, and thus severance pay was owed. In making that determination, the court re- jected the reasoning in Altman v. Steve's Music Store Inc., where the court had ear- lier ruled that only the company's Ontario payroll, and not its Quebec payroll, could be considered in the determination of whether statutory severance pay was owed. A decision from the Ontario Court of Ap- peal will likely be required before this point is resolved with certainty. For more information see: • BCTF v. British Columbia Public School Employers' Assn., 2013 CarswellBC 981 (B.C. C.A.). • Renfrew County and District Health Unit v. Ontario Nurses' Assn. (Robertson Griev- ance), [2013] O.L.A.A. No. 311 (Slotnick). • Paquette c. Quadraspec Inc., 2014 Car- swellOnt 5338 (Ont. S.C.J.). • Altman v. Steve's Music Store Inc., 2011 CarswellOnt 1703 (Ont. S.C.J.). Co-workers realized worker's true activity « from vandalism on page 1 « from CalCulatinG on page 2 Ask an Expert Verbal agreement on commission stands without written agreement An OnTARIO worker is entitled to the greater benefit of a commission agreed to verbally as compensation when she was hired, rather than just the minimum wage, the Ontario Labour Relations Board has ruled. In July 2012, Starr Smith responded to an advertisement placed in the newspaper with the heading "Cash paid daily" and stating that the job — involving telephone sales — would provide "$300 – $500 per day in advertising sales." e position was with a numbered cor- poration operating as a specialty advertising company. e company provided promotion- al materials such as pens and coffee mugs with customized logos and names for clients. e company hired Smith and she was told she would receive a 30 per cent commission on all telephones sales she could generate. However, no terms of her employment were provided in writing. Smith worked for eight days between July 16 and 25, 2012. She worked between four and 8.75 hours each day, for a total of 61.5 hours, and generated a total of $3,160 in sales. Rather than paying Smith in cash — as the job advertisement had indicated — the company gave her three cheques on July 20, 27, and Aug. 10. Each cheque was for $189.77, for a total of $569.31 — significantly less than 30 per cent of her sales, which would be $948. e com- pany told Smith that her largest single sale of $1,200 could end up being for less than that, but there was no verification for a lesser amount. Smith's employment was terminated on July 25, after which she received her second cheque. e third came after she filed a claim with the Ontario Ministry of Labour, which contacted the company regarding Smith's complaint. e Ontario Labour Relations Board noted that the Ontario Employment Standards Act, 2000, stipulated that "if one or more provisions in an employment contract or in another act that directly relate to the same subject matter as an employment standard provide a greater benefit to an employee than the employment standard, the provision or provisions in the contract or the act apply and the employment standard does not apply." In Smith's case, her position included an entitlement to a 30 per cent commission of the sales she generated on the telephone, to which she and the company agreed verbally when she was hired. Ontario's minimum wage at the time was $10.25, which would have entitled Smith to $630.37 in wages under legislative minimums. However, her commission as agreed upon when she was hired was greater than those minimums, so she was entitled to that amount, said the board. e company wasn't able to show Smith didn't work the hours and make the sales she indicated, so she was entitled to her 30 per cent commission on the sales recorded. e company was ordered to pay Smith the difference between that amount and what it actu- ally paid her — a total amount of $416.61. See 2316349 Ontario Inc. v. Smith, 2014 Carswel- lOnt 10241 (Ont. Lab. Rel. Bd.).

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