Canadian Employment Law Today

Cases and Trends 6 | November 26, 2014 Canadian HR Reporter, a Thomson Reuters business 2014 Dishonesty didn't go to core of employment relationship « from MisrePresenTaTion on page 1 previous employer for a reference because Lura was self-employed. When the com- pany asked Lura when he could start work with Jazz, Lura replied that he needed two weeks to wrap his business up, to which Jazz agreed. e Jazz president testified that if he knew Lura was actually working as a secu- rity guard at the time, he wouldn't have been hired because he was "no longer in contact with the industry." Upon Lura's hiring, he signed an employ- ment contract effective Oct. 7, 2013, which had no specific termination provision oth- er than a requirement to return "all of the company's data such as email or sales data," computers, and mobile devices at the time of termination of employment. e contract stated that it was the entire agreement and there were no oral or written arrangements outside of it. ere was no mention of a pro- bationary period. No sales in first month of employment During his first month with Jazz, Lura didn't make any sales, which frustrated the com- pany's president. Lura had some discussions with a buyer in Australia, but it turned out the buyer was an existing customer. e president told Lura he had six weeks to improve his performance, though there were no official warnings, written or ver- bal, indicating Lura's job was in jeopardy. ough it was believed Lura was trying to get something done, it was becoming ap- parent to the company that it couldn't carry a salesperson who wasn't making any sales on a regular salary. Lura felt the company's prices weren't competitive and this was con- tributing to his lack of results, but Jazz had never had a salesperson who couldn't make a sale in an entire month. On Nov. 15, 2013, Lura met with the presi- dent to discuss his lack of sales. e presi- dent told him he couldn't keep him on as a salaried salesperson if he wasn't making sales, so he terminated Lura's employment but offered him the option of working from home and selling Jazz products through his own company. Lura would receive no salary but a higher commission on any sales. e president gave Lura a couple of days to con- sider the offer. Lura declined the offer and never re- turned to Jazz. He then had his lawyer send a demand letter for wrongful dismissal. After Lura stopped working at Jazz, his email account was checked to see if there were any sales requests or other matters that required following up. However, Lura's inbox, sent message folder and deleted mes- sage folder were all empty. Lura testified he had forwarded the emails to his personal address and deleted them when he was terminated. In the process of forwarding the emails, they were deleted from his Jazz email, he said. He claimed he didn't return the information because Jazz didn't ask for it. e court found Lura was "not completely forthright on a number of issues," including his resume, which "left the impression that (he) was not very far removed from the lum- ber industry" when in fact he had not been involved for two years. Lura didn't mention his actual employment as a truck driver and security guard, while indicating he had would down his own company "recently." is led Jazz to think it was hiring "someone with fresh connections to the lumber indus- try," said the court. e court also found Lura was being dishonest when he said all his emails were deleted when he forwarded them to his personal account. e court made a point to say anyone who has used email would know this doesn't happen unless a person consciously deletes the emails on purpose. In addition, this claim goes against Lura's representation of himself as having good computer skills in his resume, said the court. "(Lura's) logic that it was acceptable for him to delete all of his email because he was never asked to return it is difficult to un- derstand," said the court. "He had signed a contract in which he agreed not to keep the email from (Jazz)." However, though Lura demonstrated dishonesty in his conduct, both before his hiring and after his termination, the court found this dishonesty did not go "to the core of the employment relationship to a degree that warrants his dismissal for cause." Lura misrepresented the currency of his ties to the lumber industry, but he did have exten- sive experience in it for more than 25 years. ere was also no indication that his lack of sales was the result of not showing up for work or not trying. In addition, there was no evidence the loss of his email adversely affected Jazz in any way, said the court. is breach of the em- ployment contract by itself was not sufficient to provide just cause, said the court. e court found two months was suf- ficient notice of dismissal. Lura was in a sales job with no management duties and had only been employed for less than two months. He was not induced to leave a se- cure or lucrative position. e court said it may have found one month's notice would be appropriate, but since Lura was 61 years old and similar employment did not seem to be readily available, Jazz was ordered to pay him two months of salary, vehicle allowance and medical allowance, which totaled $7,000 before subsequent earnings in December 2013 and January 2014 were deducted. See Lura v. Jazz Forest Products (2004), Ltd., 2014 CarswellBC 3161 (B.C. Prov. Ct.). « from ask an exPerT on page 2 For example, performing a safety sensi- tive task two or three times every two weeks may be considered insufficient. On the other hand, where an employee performs a single safety sensitive task on a daily basis, it may be said that her impairment on any given day could affect health or safety. In relation to the working level employ- ees, lack of supervision in performing their safety-sensitive duties may be relevant but is not determinative. Safety sensitive posi- tions can include supervisors or managers, to the extent that they directly supervise the working level positions, or perform the same duties or exercise the same responsi- bilities as safety sensitive positions. Furthermore, safety sensitive positions can also include desk jobs to the extent that they may impact health or safety. Examples of such jobs include traffic co-ordinators and rail traffic controllers. Examples of positions which have been found not to be safety-sensitive include clerical positions such as bank employees. In defining which positions are safety sen- sitive, the wording of the employer's policy is not determinative. In other words, just because your business operates in a highly safety sensitive industry does not neces- sarily mean you can classify all employees as safety sensitive. Rather, the onus will be on the employer in each instance to dem- onstrate that the policy should apply to a particular employee by establishing that the employee's duties are sufficiently safety sen- sitive to justify the intrusion on her privacy. For more information see: • Manitoba Government (Re), [1995] M.G.A.D. No. 84 (Chapman) • Canadian National Railway v. CAW-Can- ada, 2000 CarswellNat 2285 (Can. Arb.). Brian Kenny is a partner with MacPherson Leslie and Tyerman LLP in Regina. He can be reached at (306) 347-8421 or bkenny@mlt. com. Privacy versus safety

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