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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GST #897176350 Published biweekly 22 times a year Subscription rate: $299 per year CuStomer SerViCe Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: Carswell.customerrelations Website: thomson reuters Canada ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Carswell Media: Karen Lorimer Publisher: John Hobel (on leave) Managing Editor/Acting Publisher: Todd Humber Editor: Jeffrey R. Smith E-mail: ©2014 Thomson Reuters Canada Ltd. All rights reserved. Emplo y ment Law Today Canad ad a ian How would you handle this case? read the facts and see if the judge agrees YOU MAKE THE CALL 8 Bus driver calls in sick — from india This iNsTAlmENT of You Make the call involves a bus driver who was dismissed af- ter not reporting for work. Baljit Nagra was a bus operator for Whis- tler Transit, a transit service provider to the resort town of Whistler, B.C. Nagra was hired in November 2004 and had a few sus- pensions on his record — one for recording an earlier start than his actual start time and another for insubordination. He was also suspended for failing to stop twice at a stop sign in a single shift. In October 2013, Nagra requested four weeks vacation from mid-November to Dec. 17. He was told no leave could be granted beyond Dec. 6 as that was the start of the company's busy time. Nagra made another request for three weeks vacation ending on Dec. 6, which was approved. Nagra also signed up for spare board duty beginning Dec. 9. Spare board duty involved bidding for shifts on ursdays for the following week. Each spare board op- erator had a specifi c time for bidding based on seniority. Missing that time would drop the operator to the bottom of the priority list. On Dec. 4, Nagra was emailed informa- tion on his assigned telephone bid time for shifts. He missed his time and elected to pass on any shifts for the next week when the company reached him. On Dec. 6, two shifts for Dec. 9 became available and the dispatcher left him a mes- sage that he was being forced to work that day, which was allowed when the company needed to avoid overtime costs with other operators. Nagra didn't respond. Operators on scheduled days off had to be called to work overtime. On Dec. 9, a bus operator called in sick. e dispatcher again called Nagra and left a message but received no response. e next day, the dispatcher was able to reach Nagra for another open shift but Nagra said he was passing up the work because he was sick. He also passed up a shift the next day. Again, op- erators on scheduled days off were called to work overtime. e next ursday, Nagra once again missed his bidding time for shifts. e dis- patcher contacted him and he said he was passing up all assignments. e manager asked to speak with Nagra, who said he was sick and would send a doctor's note prescrib- ing a week's rest. e manager asked if Nagra was in India and Nagra admitted he was and couldn't travel back because of his illness. e manager said they would have to meet when Nagra returned and see if he still had a job. Whistler Transit received two medical notes from India on Dec. 10 and 17 advised seven days of bed rest for Nagra. On Dec. 27, a B.C. medical clinic faxed a note saying Nagra could try to work fi ve-hour shifts for two weeks and be re-evaluated at that point. e manager met with Nagra on Dec. 30 and Nagra said he had a return fl ight from India reserved for Dec. 12. He said he wasn't able to book a return fl ight for earlier but had planned to return Dec. 9 on standby if he couldn't make a change. e manager didn't believe him because of Nagra's original va- cation request and he learned Nagra didn't actually return to Canada until Dec. 26. Because operators were supposed to be available for work on all days they are spare board operators and Nagra was believed to be dishonest about his going to India and availability for work, Whistler Transit ter- minated Nagra's employment, eff ective Jan. 3, 2014. Nagra and the union argued it was an excessive disciplinary response and the problem was miscommunication. Nagra insisted he had intended to return on Dec. 9 so he could work, but his illness changed his plans. He also said his trip was not for pleasure but for family responsibility as his father had fallen ill. You mAke tHe CAll Was the dismissal unjust? OR Were there grounds for dismissal? iF You sAiD there was just cause for dis- missal, you're right. e arbitrator had diffi - culty believing Nagra booked a return fl ight from India for a date after he was supposed to have started work with the intention of changing it. It was also suspicious that it was during the period of his original vaca- tion request, and it was telling that after the manager told him his job was in jeopardy after passing on shifts, Nagra extended his stay in India. "It is my conclusion that Mr. Nagra was dishonest when he booked his fl ights; dis- honest in his telephone conversations with (the dispatcher); dishonest in his meeting with (the manager); and dishonest in his testimony," said the arbitrator. e arbitrator found Nagra had little understanding of the gravity of his miscon- duct, which caused staffi ng problems for Whistler Transit during a busy time. Nagra also didn't demonstrate any remorse, mak- ing dismissal an appropriate disciplinary response, said the arbitrator. e grievance was dismissed. See Whistler Transit Ltd. and Unifor, Local 114 (Nagra), Re, 2014 CarswellBC 2724 (B.C. Arb.).

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