Canadian Employment Law Today

November 12, 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 | 11 Canadian HR Reporter, a Thomson Reuters business 2014 More Cases bribe to switch a customer to the competitor. is happened on two occasions, the other driver claimed. e manager met with Khan again and terminated his contract. e court found Khan owed a duty of fi- delity to Ace and it made sense for Ace to be concerned when it received reports of efforts to steal customers. However, it had an obligation to conduct a reasonable in- vestigation into the situation and provide Khan an opportunity to respond to the al- legations, which it did not do on any of the occasions — the manager simply met with Khan, warned him the first two times, and fired him the third time. e court also found the first complaint didn't implicate Khan at all, but it was as- sumed it was him because the competitor in question was owned by Khan's brother. e second complaint was hearsay, but Ace treated it as fact, and the third complaint was from a direct witness but wasn't inves- tigation, said the court. e court found Ace had a progres- sive discipline process that allowed "three strikes" before termination. However, in Khan's case, the company's failure to inves- tigate meant it improperly used the process. "My concern is that, based upon the evi- dence available to this court, the 'first strike' almost certainly involved no misconduct; the 'second strike' was of dubious credence. "e 'third strike' seems to have had more substance, but by no means can it be said that the case against (Khan) was convincing or overwhelming," said the court. e court found Ace's failure to inves- tigate the allegations against Khan left it without just cause for dismissal. In addi- tion, the court found the reality of the re- lationship was that Khan was a dependent contractor, and was therefore entitled to reasonable notice. "I realize that the contract which (Khan) signed at the time of commencing his re- lationship with Ace clearly stipulates that he is an 'independent contractor,'" said the court. "With respect, that is not necessar- ily determinative of the issue, if the con- sequence of (Khan) signing the document is to significantly circumscribe the rights available to him at law in the event of ter- mination." e court found Khan was entitled to three weeks' notice for each year of service, or 16 weeks — four months — in total, less what he made in a job he found with the competitor following his termination. e court rejected Khan's claim for aggravated or punitive damages. See Khan v. All-Can Ex- press Ltd., 2014 CarswellBC 2246 (B.C. S.C.). « from no just cause on page 1 Worker cut from staff after knife incident An ArBiTrATOr has upheld the firing of an Ontario worker who cut a co-worker with a knife in the workplace lunchroom. e 57-year-old employee was a custo- dian for Firestone Textiles, a manufacturer of nylon resin and yarn in Woodstock, Ont. He worked for Firestone for 36 years through late 2013. e custodian attended workplace ha- rassment and violence training under Fire- stone's Harassment, Bullying and Work- place Violence Policy, as was required for all employees. On Sept. 28, 2013, the custodian was eat- ing lunch with three co-workers in the em- ployee lunchroom. One of the co-workers had a problem closing the lid on his plastic container, so he banged on it with his fists several times. is created a loud noise that got on the custodian's nerves. e custodian took out two utility knives which he carried while working and said to the co-worker, "Would you like the curved blade or the straight blade?" e co-worker, thinking it was a joke, started laughing. e custodian put away the curved blade and began swinging the utility knife with the straight blade under the table toward the co-worker's legs, then swung it above the table towards the co-worker's chest. e co-worker stopped laughing and be- came alarmed at the custodian's actions. He reached out to grab the custodian's arm to stop him from swinging the knife, but he missed and the knife cut him on his fore- arm. e co-worker said "You got me!" and wiped the blood with his shirt. Fortunately for the co-worker, the cut was shallow. e co-worker reported the incident to a supervisor and said he felt threatened, so the supervisor allowed him to go home. On his way out of the office, the co-worker came across the custodian again, who said "You are lucky I didn't stab you in the heart." When the co-worker reported this, the custodian was sent home pending investigation. e co-worker's wife called police after finding out about the incident and the cus- todian was charged with assault and utter- ing a threat. e custodian told police he had a physical condition aggravated by a low red blood cell count, and he "blew up in a fit of rage" at the co-worker. When Firestone conducted an investiga- tion, the custodian said the co-worker had said "come on, you can't cut me, you are too slow" when he took out the knife to cut a wrapper on his lunch. e investigation de- termined this was a lie. Firestone terminated the custodian's em- ployment on Oct. 4, 2013. A few days later, the custodian began counselling sessions and later an anger management counsel- ing program. In late November, he pleaded guilty to the assault charges and was given a 12-month suspended sentence and manda- tory anger management counselling. e union grieved the dismissal, arguing the incident was an isolated outburst and, given the custodian's age and years of service, termination was too harsh a punishment. e custodian regretted his actions and had taken counselling that would help ensure it wouldn't happen again, said the union. e arbitrator found there was no expla- nation or reason for the custodian's out- burst, which made it difficult to determine it wouldn't happen again, even after he took anger management counselling. It was also sheer luck that the co-worker didn't suffer a more serious injury than a shallow cut, said the arbitrator. e arbitrator also found the custodian's conduct following the incident didn't show any remorse. He made another threaten- ing remark to the co-worker when he en- countered him later, which showed he hadn't cooled off and didn't feel apologetic. In addition, he lied to Firestone about the incident, showing a lack of remorse and a failure to take responsibility for his actions. is gave no reassurance that he wouldn't do something similar if he was returned to work, said the arbitrator. e arbitrator also noted the custodian was ordered to have no contact with the co-worker when he was convicted. is would make it even more difficult to return him to work. e custodian's dismissal was upheld. See Firestone Textiles Co. and UFCW, Lo- cal 175 (Karn), Re, 2014 CarswellOnt 14011 (Ont.Arb.). Employer relied on hearsay without investigating There was no explanation or reason for the employee's outburst, which made it difficult to determine it wouldn't happen again, even after he took anger management counselling.

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