Canadian Employment Law Today

6 | January 7, 2015 Canadian HR Reporter, a Thomson Reuters business 2015 More Cases Worker called in sick from bar he owned and residents in Niagara-on-the-Lake. Carter remained a silent partner in the new bar and wasn't involved in the day-to- day operations. His plan was to continue working at the Olde Angel while the new bar would be an investment. Employer reacted negatively to worker's investment in other business On Sept. 2, 2011, Carter called Williams, one of the Olde Angel's owners, to tell him about his investment in the other bar but that he wanted to keep working for Williams. Wil- liams congratulated him on the transaction. Later that day Carter told Penman about it, but she reacted negatively. Both owners had concerns about Carter being in charge of in- ventory for two bars, as they felt there could be a conflict of interest from the temptation to steal or to use his relationships with sales rep- resentatives to get discounts for his new bar. Carter worked his shifts that day and the next, and heard about negative comments by Penman through other employees. e next day, which he had off, he went to his new bar and, upset by what he had heard, drank too much. He called Williams – who was in England where it was the middle of the night – a few times and told him he was upset about the reaction to his purchase and he could handle both commitments. Wil- liams agreed to discuss it with him later. e next day was a Monday, which is when Carter usually did his ordering for the Olde Angel. However, it was Labour Day and the suppliers other than Brewers Retail were closed, so Carter – who was hungover – called in sick unless they "really needed him." e Brewers Retail order could be done by anyone, so he didn't see a problem. He made the call from his new bar, as he had gone over to retrieve his car which he had left the previ- ous night because he had been drinking. Penman saw Carter was calling from his new bar and assumed he wasn't sick but in- stead was working there. e Olde Angel owners told Carter to take a few days off to "consider things." Cart- er didn't work from Monday through Friday that week, then spoke to Williams on Friday, Sept. 9, and they agreed to meet on Sept. 11. Carter expected the meeting to be cordial, so he brought his wife and children. How- ever, Williams had spoken to his lawyer and drafted a letter to give to Carter. At the meet- ing, Carter reiterated that he could handle both commitments and if a problem arose, they could address it. However, Williams gave Carter the letter, which stated Carter had called in sick when he was actually work- ing at the other bar, had called the owner in the middle of the night and had been absent from work without explanation – referring to his absences the previous week. It also said Carter had damaged the Olde Angel's busi- ness by failing to supervise employees and "disregarding (the inn's) business interests." Finally, it stated Carter had breached his em- ployment duties and he had "already severed your employment relationship." e letter was accompanied by a letter of resignation and release for him to sign. e court found Carter's absence from work the previous week was approved by the Olde Angel and Carter was not culpable for it. He was told to take a few days off and when the meeting was scheduled for Sept. 11, that was permission to remain off until that time. When Carter didn't come to work in the days after the meeting, it was not an abandonment of employment because he had been told to stay away and that he would be fired if he didn't resign, said the court. ough Williams testified the letter was in- tended to negotiate a change in the terms of Carter's employment, the court found this could not be so. "A new contract position would have amounted to constructive dismissal any- way," said the court. "I find that on Sept. 11, 2011, (Carter) was actually, not construc- tively dismissed." e court also found Carter was not work- ing at the other bar when he called in sick. He wasn't feeling well and he was upset because of Penman's reaction to his transaction. He had a good reason to be at the other bar and there was no reason for him to be accused of lying, particularly since he was a 19-year em- ployee with no previous issues. In any event, Carter's absence did not stop the beer from being ordered from Brewer's Retail because anyone could do it, said the court. Finally, the court found Carter was not involved in the day-to-day running of the other bar, so there was no reason for the Olde Angel owners to be concerned about conflict of interest. e bar was not in di- rect competition with the Olde Angel and it wasn't clear how any discounts Carter received from suppliers would hurt the Olde Angel's business, said the court. e court found Carter was dismissed without cause. e Olde Angel Inn was ordered to pay him 20 months' pay in lieu of notice minus income he earned work- ing part-time at a bar for 11 months. Carter didn't make any money on his investment in the Niagara Falls bar. e total award was $64,990. for more information see: • Carter v. 1657593 Ontario Inc., 2014 Carswell Ont 16431 (Ont. S.C.J.). « from WorkEr on page 1 « from ask THE ExpErT on page 2 Suspected fraud can be reported to authorities WorkSafe BC's Review Division. If the em- ployer disagrees with the Review Division's decision, an appeal can be filed within 30 days with the Workers' Compensation Ap- peal Tribunal, an independent tribunal which represents the final level of appeal for most issues. Aside from the review and appeal pro- cess, an employer may have other options if it feels an employee is being dishonest about her workers' compensation claim. In Brit- ish Columbia, for example, WorkSafeBC operates a "Fraud Tip Line," which enables employers, employees, and members of the public to report suspected fraud relating to claims made under the province's Workers Compensation Act. Such reports can be filed by phone, email, fax, or regular mail, or by completing an online "fraud allega- tion" form. Similar reporting schemes ex- ist in other jurisdictions. For example, in Saskatchewan an employer can report sus- pected fraud or abuse anonymously — by phone, fax, mail, or email. In Ontario, a person who suspects a worker is being dishonest with the prov- ince's Workplace Safety and Insurance Board (WSIB) can report the matter via a toll-free "action line" or by email. If suspected fraud is reported, the WSIB will create a call record, which will then be re- ferred to the Regulatory Services Division for review and to determine what appropri- ate action is needed. for more information see: • Ceccol v. Ontario Gymnastics Federation, 2001 CarswellOnt 3026 (Ont. C.A.). • Mitchell Energy Corp. v. Canterra Energy Ltd., 1986 CarswellAlta 271 (Alta. Q.B.). Colin G.M. Gibson is a partner with Harris and Company in Vancouver. He can be reached at (604) 891-2212 or cgib- son@harrisco.com.

• Cover