Canadian Employment Law Today

October 15, 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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PM40065782 Voluntary severance program not discriminatory: Arbitrator Labatt's incentive payment calculated from earnings of last day worked, which was lower for workers on LTD By JEffrEy r. SmiTh A VOlUnTAry reTiremenT incen- tive did not discriminate against disabled employees by calculating their payment based on what they earned when they worked rather than the current wages for their positions, an arbitrator has ruled. Pay rates for Labatt Breweries employees were set in collective agreements — in each new agreement, wages were set at a higher rate than in the previous one. ere were no wage progressions — each employee re- ceived the set wages in the collective agree- ment until the next agreement. e collec- tive agreement allowed for higher wages for "seniority employees" and as a result did not guarantee the same pay for everyone for the same work. Long-term disability (LTD) benefi ts were part of the Labatt benefi ts package, and the negotiated LTD plan paid about two-thirds of the disabled employee's regular earnings when the employee was at work, if the em- ployee was "totally and permanently dis- abled and is unable to do any job at all." e October 15, 2014 Emplo y ment Law Today Canad ad a ian vale employees fi red after assaulting picket- line crosser pg. 3 Striking workers went on 'scab hunt' with Brian Johnston no just cause means right to recall still valid A neW BrUnSWiCk seasonal park worker who was terminated at the end of one season had her right to recall breached when she wasn't rehired the following sea- son, an adjudicator has ruled. In 2010, the New Brunswick legislature passed amendments to its Public Service La- bour Relations Act that included casual em- ployees within its defi nition of "employee." In September 2012, New Brunswick and its main union reached an agreement that en- titled "previously excluded casual employees" to eligibility for recall for seasonal work for which they were previously employed. e right to recall was to be based on "seniority and satisfactory work performance." In 2013, a casual seasonal employee — re- ferred to as L.P. in court documents — worked at a provincial park as a receptionist for her fi fth season. L.P. had received mostly positive assessments of her job performance up until then. In 2012, there began to be lower ratings in areas of teamwork, but her assessment in- dicated she was willing to improve. In August 2012, L.P.'s supervisor had a discussion with her regarding telephone procedure. e main phone line was only to be answered in reception if it was answered at the bus kiosk fi rst, and administration should answer it if reception wasn't avail- able. L.P. indicated it was diffi cult to answer the phone in reception because it was noisy and interfered with customer service. L.P. also pointed out the previous supervisor and said reception should not answer the phone at all when serving a park guest. e next day, L.P. didn't answer the phone at all and said she was being tested when asked about it. She was told she should answer the phone when possible, but L.P. disagreed. She was then directed to answer the phone and she replied "if the answering of the phone is a priority over serving our guests, I will oblige." e supervisor considered the record of discussion from this incident to be a verbal warning, which was the fi rst of three disci- plinary steps the department of tourism uti- lized with employees. L.P. returned to work at the park in 2013 and applied to be a gift store supervisor. However, when she found out the position wasn't unionized, she decided to stay in her unionized position at reception. She asked other employees about their union status and pay rates, but the supervisor felt this "created doubt among the staff " and violated the department's no gossip policy. L.P. also asked others about tasks they performed CRedit: BRiAN A. JACkSoN/ShutteRStoCk Bus driver given another chance after multiple suspensions pg. 4 Employee sent letter after termination acknowledging misconduct and vowing to be better if given another chance aGreeMent on page 6 » WorKer on page 7 » aSK an eXPert pg. 2 Suspension following investigation • Affi rmative action

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