Canadian Employment Law Today

January 21, 2015

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 Emplo y ment Law Today Canad ad a ian January 21, 2015 Worker unfairly singled out as harasser Workplace was full of gossip and rumours; employer relied on hearsay to determine worker was responsible By JEffrEy r. SmiTh An AlBErTA ArBiTrATOr has over- turned the suspension of a worker singled out for harassment of a co-worker in a gos- sip-fi lled work environment. e worker was employed with Feder- ated Co-operatives (FCL), an Alberta-based company that operated a food warehouse. e worker, a forklift operator with 14 years of service, was one of about 20 employees of Filipino background employed at the ware- house. FCL had a harassment policy that pro- hibited "any unwanted, unsolicited, and of- fensive behaviour, comments, displays, or other verbal, physical, written or electronic contact by a person that is directed at an em- ployee that does, or is likely to cause, off ence or humiliation to any employee" including derogatory comments. Complaint led to investigation On Nov. 17, 2011, FCL received a written incident report from a female employee complaining about four incidents over the previous week of tampering with one of her tools, a powerjack. e report didn't identi- fy a culprit, and FCL began an investigation FCL found more incidents of tampering and potential harassment by the worker and others, so it expanded the investigation, though there were no formal harassment complaints fi led. e worker wasn't advised he was being investigated for harassment. Employee fi red after false accusation against co-worker pg. 3 Employee couldn't provide details of alleged incident with Lorenzo Lisi Cpr worker fi red after alcohol test refusal An ArBiTrATOr has upheld a railway conductor's termination for refusing to sub- mit to an alcohol test. e employee was a conductor for Cana- dian Pacifi c Railway (CPR), hired in 1999. On Dec. 24, 2013, conductor worked on an overnight train from Smiths Falls, Ont., to Montreal, arriving in the morning. e crew on the train – consisting of the conductor and an engineer – was scheduled to fi nish their as- signment at a hotel and head back to Smiths Falls by taxi in the afternoon. Shortly before the crew was scheduled to leave for Smiths Falls, they were asked to op- erate another train back instead of taking the taxi. When the taxi arrived, they informed the driver they would only be going to the train nearby instead of the longer trip – and larger fare – to Smiths Falls, and the driver became aggressive, raising his voice and swearing. e employee and his crewmate, the engineer, got out of the taxi and the engineer called a train- master to take them to the train. When the trainmaster arrived, the engi- neer got in the front of his truck and the con- ductor got in the back. e engineer was yell- ing and the trainmaster smelled alcohol on his breath, so he called a superintendent. e engineer denied drinking but he was told substance testing was going to be arranged. e conductor spoke with two other crewmembers who were going back to Smiths Falls and decided to ask the train- master if he could go back with them. How- ever, the trainmaster smelled alcohol on the conductor's breath as well and reported this to the superintendent, who was on his way by this time. When the superintendent arrived, the conductor denied drinking, but the superin- tendent observed him speaking slowly and deliberately. e conductor also smiled and asked the superintendent if he had noticed his new safety glasses, which the superinten- dent thought was an odd way to greet him. e superintendent also observed the con- ductor's eyes weren't fully open and he was swaying slightly. He asked the conductor to come to his vehicle to talk. In the vehicle, the superintendent smelled "a stench of alcohol" and the conductor seemed to be trying to keep a distance. e conductor was also slow to answer ques- tions.' e superintendent decided to order a substance test for the conductor as well, though both he and the engineer continued to deny consuming any alcohol. e other credit: LiGhtWaVeMedia/shutterstock Employee sent packing after pre-planned trip while off sick pg. 4 Worker made trip arrangements, then asked doctor for note giving time off during dates SInGLED oUT on page 6 » SUPErVISorS on page 7 » ASk An ExPErT pg. 2 Off-duty violent behaviour and just cause

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