Canadian Employment Law Today

October 29, 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 Poor attitude, performance makes fi xed-term contract even shorter Insults, insubordinate behaviour gave just cause to terminate executive's contract before its end date: Court By JEffrEy r. SmiTh AN oNTArio ComPANY had just cause to terminate a fi xed-term employment con- tract due to the employee's insubordination and poor performance, the Ontario Supe- rior Court of Justice has ruled. K. Matthew Hoang was hired on a fi xed- term contract of employment beginning Oct. 4, 2010, to be the chief fi nancial offi cer (CFO) for Mann Engineering, a consulting, engineering and construction company in Toronto. e contract had a termination date of Oct. 30, 2011, and Hoang's duties in- volved managing administration, sales and fi nance staff , overseeing Mann Engineer- ing's fi nancial activities and budgets, strate- gic tax planning, and negotiating contracts for solar development projects — projects involving programs where agricultural barns were built for farmers in return for the lease of the barn roofs for solar panels. Hoang's contract also included a termi- nation provision which stipulated it could be terminated at any time for cause by writ- ten notice and he would have no claim out- October 29, 2014 Emplo y ment Law Today Canad ad a ian Pregnant server constructively dismissed pg. 3 New owner felt pregnant server didn't fi t with sports bar's new image with Tim Mitchell Dismissal for excessive absenteeism too hasty AN oNTArio EmPloYEr did not have just cause to dismiss an employee for exces- sive absenteeism, an arbitrator has ruled. e employee worked in the dietary de- partment of the Humber River Hospital in Toronto for 15 years — almost seven of those years as a full-time employee. e hospital kept track of employee sick days in two ways — by monitoring the num- ber of new sick incidents and the number of total sick days employees took. Sick inci- dents were absences due to illness that could take one or more days but were related to the same illness. In late 2012, the hospital expressed con- cern with the number of sick days the em- ployee was taking. According to hospital records, from 2009 through the fi rst half of 2012, the employee had 65 new sick inci- dents, or 1.5 per month on average. e de- partmental average during this time was 0.4 per month and the overall hospital average was 0.25 per month. In the same time period, the employee took a total of 127 sick days, averaging 3 per month. e departmental and hospital averages were 1.4 and 0.9, re- spectively. In addition, the pattern of the employee's absences usually involved unanticipated short-term absences, which disrupted the hospital's ability to schedule employees and issue assignments. e employee blamed most of her ab- sences on chronic back pain and medical appointments for treatment. e hospital didn't require doctor's notes for absences of less than three days, but the employee's oc- cupational health fi le indicated she had back problems due to degenerative disc disease. She also suff ered from occasional knee and abdominal pain from osteoarthritis and ab- dominal hernias, respectively. In 2009 and 2011, the employee was on modifi ed duties related to her back and knee pain. However, the employee didn't fol- low her physician's advice or continue with physiotherapy, so she didn't improve. She eventually underwent successful surgery for her hernias and the abdominal pain was not expected to recur. Concerned with the employee's sick day re- cord that involved more than double the num- ber of sick days and more than three times as many sick incidents, the hospital referred the employee to its attendance awareness coun- seling program (AACP) in December 2008, but she didn't attend. She was referred again in March 2010 and attended the sessions. CREDIT: IQONCEPT/SHUTTERSTOCK taking a stand against workplace bullies pg. 4 Fighting workplace bullying is more of a challenge — and more of a priority — with more ways for bullying to happen emPloYee on page 6 » ProGNoSiS on page 7 » ASk AN exPert pg. 2 Renewing contracts for shorter terms with ASk AN exPert Renewing contracts for shorter terms

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