Canadian Employment Law Today

Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2015 More Cases WeBiNarS Interested in learning more about employment law issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as family status accommodation, independent contractors, occupational health and safety, the new labour market opinion regime, and a Canada Labour Code primer. To view the webinar catalogue, visit cpdcentre.ca/hrreporter. application, and Tossonian heard him say "yes, I'm stuck with him for five years and hopefully longer." Over the next few months, Tossonian told a co-worker he had been talking to a competing jeweller, who was plan- ning to open a new store. He also men- tioned to other employees about working elsewhere. When the co-worker said if the owner heard about it, he would be upset, Tossonian reportedly said he couldn't be fired because he had a five-year con- tract. As it turned out, the competitor had made a good job offer and Tossonian was thinking about what he should do. He was also concerned about being instantly fired if he gave notice at Symphony Dia- monds. When Tossonian arrived at work on March 30, 2012, the owner took him to a nearby restaurant to talk. He told Tos- sonian that he had found out another employee had been looking for other em- ployment so he fired her. He also said Tos- sonian had a right to look for another job but not to talk to other employees about it. e owner became angry and Tossonian said it was "just a conversation, it was noth- ing." However, the owner swore at Tosso- nian and left. Tossonian was shocked and eventu- ally returned to the store. His co-worker denied saying anything to the owner and Tossonian went looking for him. e owner soon returned to the store and said it wasn't acceptable and he couldn't trust Tossonian anymore. Tossonian claimed he said it was "BS" and he was going back to work. However, the owner said he didn't trust Tossonian in his store and nodded when Tossonian asked if he was letting him go. Some yelling ensued between them and the owner asked for Tossonian's keys to the store. He then said "good luck to you" and departed. e owner claimed that when he said in the restaurant he didn't trust Tossonian anymore, Tossonian stood up, gave him his keys, and left. When Tossonian didn't come back to work, he prepared the record of employment. Tossonian received a record of employ- ment that indicated he had quit, which delayed his receipt of employment insur- ance. He eventually was offered a job back at his old store in Vancouver, which he ac- cepted. Tossonian claimed he was dismissed and was owed the balance of his five-year guar- anteed contract. Symphony Diamonds ar- gued there was no guaranteed term. e court found Tossonian downplayed his discussions with the competitor, when in fact he had a firm job offer. ough the owner was angry when he found out about it, the court noted "any employer who had done what (the owner) had done for Mr. Tossonian would feel disappointed. Within months of coming to Toronto to work for (Symphony Diamonds), (Tossonian) was ready to take a job with one of (its) com- petitors." e court found Tossonian was a little manipulative and took advantage of Sym- phony's owner's "flamboyant generos- ity and his lack of attention to detail." e terms of Tossonian's employment were that which were agreed upon on July 15, 2011, which had no mention of the five- year guarantee, said the court. Only the statement of employment and the later document mentioned such a term, and they were after the employment already started. Even if the owner agreed to a five- year term, there was no written agreement for such in place when Tossonian started work, said the court. e court found the owner became angry with Tossonian and terminated the employment, rather than Tossonian resigning. However, with no five-year fixed term and only eight months of ser- vice, the notice required was only two months, when also taking into account Tossonian moved across the country for the job. See Tossonian v. Cynphany Dia- monds Inc., 2014 CarswellOnt 18290 (Ont. S.C.J.). Employee started without written agreement « from Fired on page 1 The court found Tossonian downplayed his discussions with the competitor, when in fact he had a firm job offer. « from iNSuBordiNate WorKer on page 3 supervisor was for a specific incident, which any employee could do, and the situation had nothing to do with union representa- tion. Also, Brownlie's comment about get- ting the manager fired was his own action and had nothing to do with union business, said the arbitrator. In the break room, Brownlie's work on the grievances was union business, but it was not the normal time allowed to do it and his argument with the manager was not in relation to a union position on an issue. e manager wanted Brownlie to get back to work and the argument was related to Brownlie's job that day, not union business, said the arbitrator in finding there was just cause for discipline. e arbitrator also found the compa- ny had followed a progressive discipline scheme with Brownlie's previous suspen- sions, giving him an opportunity to learn from his mistakes and improve his behav- iour. However, the misconduct of his previ- ous suspensions was similar to the grounds for dismissal, showing little evidence of im- provement. e termination was upheld. For more information see: • JD Norman Industries and Unifor, Lo- cal 195 (Brownlie), Re, 2014 CarswellOnt 18310 (Ont. Arb.). Argument related to worker's job, not union duties

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