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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Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2014 more Cases during slow times after she was given some data to enter during her own slow times. L.P. was told to come to her supervisor if she had questions and not make inquiries on her own. L.P. responded that "I will continue to question answers when I get two different versions of what situations occur. I will al- ways need the truth, which is the only thing I will deal with happily." L.P. received a second record of discussion on Sept. 4, 2013. On Sept. 19, a group of nine guests with discounted tickets requested a refund be- cause of limited access to the park's natural attractions due to the timing of the tides and access to the ocean floor. Another employ- ee tried to convince them to stay and view the high tide and then return later, as their passes were good for two days. However, L.P. gave the customers a refund. Later that day, L.P. was heard on the phone telling someone there was "no point" in coming to the park because access to the ocean floor was at 4:30 and they closed at 5 p.m. Another employee said access was ac- tually at 3:30, but L.P. argued that was only s a small part and the entire area wasn't ac- cessible until 4:30. L.P. was given another record of discussion and written warning, stating that guests must be given "consistent and accurate informa- tion." L.P.'s advice to guests was characterized as "unacceptable as we are losing guests and they are missing out on the opportunity to ac- cess to ocean floor or visit altogether." L.P.'s supervisor informed her she had to "write it up" for the HR department, and she should keep it confidential. However, L.P. re- sponded by email that should would discuss being "written up" with whoever she chose. L.P. then posted a copy of the email on an em- ployee bulletin board. Management felt this escalated things to a "poisoned environment." On Sept. 30, L.P.'s employment was termi- nated for displaying "no willingness to see the big picture" and rationalizing her behaviour as dedication to customer service. She was paid up to Oct. 11, which was the day the park closed for the season. In May 2014, the park opened for the season and L.P. was not recalled. She filed a grievance claiming a breach of her seasonal recall right. e adjudicator found the collective agreement indicated an intention to en- sure the employer acted fairly and reason- ably when determining whether a seasonal employee performed at a satisfactory level for the purposes of determining seasonal recall. e records of discussion issued to L.P. expressed "an underlying fear that any suggestion of dissent will undermine the 'team'", and didn't go into specifics about what L.P. did that was misconduct. e adjudicator noted that L.P.'s actions regarding her responses and posting the confidential email on the bulletin board warranted discipline, but termination was not a reasonable response. e previous warnings were each a step of discipline and termination was considered the next step withoutsuspension as an option. e adjudicator determined L.P.'s job performance was acceptable and the termi- nation of her employment was too harsh. As a result, her right to seasonal recall was breached. e tourism department was ordered to reinstate L.P. to her position of receptionist with compensation for loss of wages from the start of the 2014 season. See NBUPPE and New Brunswick (Department of Tourism, Heritage and Culture) (P. (L.)), Re, 2014 CarswellNB 421 (N.B. Arb.). Worker discussed pay rates with staff « from no juSt cauSe on page 1 Worker suffered unfair treatment but not discrimination from supervisor An OnTAriO WOrker was treated poorly by his manager but that treatment was not discriminatory, the Ontario Human Rights Tribunal has ruled. Salvatore Sfara was a carpenter employed with the City of Toronto. As the result of sev- eral incidents at work, Sfara felt his supervi- sor was targeting him and singling him out. On Jan. 8, 2011, Sfara didn't put on his safety boots because he wasn't working in a dangerous environment and he didn't feel the boots were necessary. ere were also office workers going through the area with- out safety equipment. However, when Sfara's supervisor saw he wasn't wearing the safety boots, the supervisor yelled at him about proper safety equipment. Sfara felt yelling was unnecessary, particularly in front of other people. On May 5, 2011, Sfara received an email inviting him to an information session. When he arrived, his supervisor questioned why he was there and said he didn't want to pay Sfara overtime for the session. e supervisor then accused Sfara of making up his own rules for unauthorized overtime and said he needed to keep Sfara confined because he was never around when people needed him. Sfara felt singled out for discipline. On Sept. 12, Sfara was scheduled to work at a remote site. He received an urgent call to get to the site, so he skipped stopping at the shop to get his boots. Once there, he began moving materials with a co-worker. Sfara's supervisor noticed Sfara wasn't wearing his boots again and when Sfara told him they were back at the office, the supervi- sor leaned into him and stepped on his toes. At the end of the day, the supervisor gave Sfara a letter about the need to wear proper safety equipment. One week later, Sfara was working at an- other site with an apprentice. While on a break, Sfara went to a nearby store to buy rain pants. His supervisor called him to ask why he wasn't at the job site and later, back at the shop, insulted Sfara and threatened to fire him. By October 2011, Sfara felt that coming into work was unpleasant every day. On one occasion, his supervisor touched Sfara's head and said he was hard on Sfara but he should "come over to the dark side." Sfara didn't say anything but didn't like his supervisor touch- ing him. He was also told he might be laid off. One day in January 2012, Sfara's supervi- sor caught him without safety boots again and stepped on Sfara's foot. e supervisor then told him he was going to be demoted and other guys wanted his position. Sfara re- plied that he didn't know what the supervisor wanted from him and he knew the supervi- sor hated him. e supervisor responded by telling him to empty out his desk that night. Sfara filed a human rights complaint, claiming he was a victim of discrimination with respect to employment because of sex- ual orientation. e tribunal found the relationship be- tween Sfara and his supervisor was "fraught with tension" and Sfara sincerely believed he was being singled out and unfairly rep- rimanded. However, there was no evidence presented that suggested Sfara experienced differential treatment that resulted in a dis- advantage to him based on his sexual orien- tation, gender, or any other protected ground under the Ontario Human Rights Code. "Although I have no trouble conclud- ing that a pattern of unwanted physical contact, if it happened as described, could constitute harassment and an assault, I cannot agree that the behaviour could be characterized as harassment on the basis of sex in the absence of any link between (Sfara's) gender and the actions in ques- tion," said the tribunal. e complaint was dismissed. See Sfara v. Toronto (City), 2014 HRTO 178 (Ont. Human Rights Trib.).

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