Canadian Employment Law Today

Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2015 Cases and Trends/ More Cases Breach of security protocol caused risk Employee left on her own were concerned Rabethge wasn't spending enough time there. Rabethge had been leav- ing at 1 p.m. on Saturdays, but managers were required to work until 6 p.m. Rabethge said she couldn't work more than 40 hours per week – which she was already doing – because of her parental obligations. Rabethge's store had two assistant man- agers, but one was on maternity leave so the company suggested bringing in an employ- ee who had recently managed another store to serve as an assistant manager and help Rabethge. However, Rabethge felt they were trying to push her out of her job, though she didn't say anything about it. ese feelings were intensified when the vice-president proposed a review of her employment terms in January 2014 and a possible move to the loss prevention department, which wouldn't involve a reduction of salary. After the meeting, Rabethge consulted a lawyer. She also happened to run into the competitor's store manager who informed her he had given notice, so Rabethge con- tacted the competitor who offered her a job on Aug. 18. Rabethge sent an email to the vice-pres- ident on Aug. 20 that said she considered herself to have been demoted and construc- tively dismissed with the proposed arrival of the other manager to her store. She de- manded termination and severance pay along with a top-up of her salary for the year to $45,000. She gave him until Aug. 26 to respond, though the normal chain of com- munication would be through the district manager. On Aug. 21, Rabethge accepted the job with the competitor. e vice-president did not initially see Ra- bethge's email as he received a large amount of emails each day. Rabethge showed up for work on Aug. 26 and sent an email to the vice-president confirming her view that she was constructively dismissed and "this will be my last day of employment." e other employee contacted the district manager, who in turn contacted the vice- president, who hadn't yet seen Rabethge's original email. e vice-president tried to call Rabethge but couldn't reach her. He fi- nally read the Aug. 20 email and replied to it saying he wanted her to stay at Sirens and he had stopped the transfer of the other man- ager. He also said she could choose her own assistant manager and asked her to contact him, which she didn't. Rabethge started the new job on Sept. 1 with a higher salary. On Sept. 3, YM Incor- porated sent her a letter confirming she had left her job and it wanted her back under the same terms of employment. If she didn't re- turn, YM would consider her to have aban- doned her position, the letter concluded. Rabethge didn't respond to the letter and filed a claim for wrongful dismissal dam- ages. e arbitrator found Rabethge's fear she was being pushed out of her position as store manager was unfounded. e filling of an assistant manager position to cover a maternity leave was not a fundamental change in employment, and there was no change to her pay or any suggestion by the company there would be, said the arbitrator. "e employer's announcement of a fu- ture review of the employee's terms of em- ployment did not amount to a constructive dismissal," said the arbitrator. "ere had been no fundamental change nor any spe- cific change at the time when Ms. Rabethge alleges she was constructively dismissed. Nor had any specific change been imposed with an effective date in the future." e arbitrator found Rabethge was con- cerned about her future income so she found another job and sent a demand for severance pay to see if she could get more money out of her departure from Sirens. e decision to leave was "entirely of her own volition" and therefore YM Incorpo- rated owed her no notice or severance pay, said the arbitrator. See Rabethge v. YM Inc., 2015 CarswellOnt 877 (Ont. S.C.J.). « from eMPLoyee aFraid on page 1 union also claimed gender was a factor in the manager's behaviour towards Lefkow- itz, creating a poisoned work environment for her and other female staff. e operations manager testified he was frustrated during the incident, but de- nied yelling or being abusive, though he acknowledged he did not remain "calm or level." He admitted to breaching procedure for searching visitors and allowing them ac- cess, but said it was out of character for him. He also claimed he gave Lefkowitz a reason- able order and she refused, explaining that she was expected to follow direct orders as long as they are not unlawful or related to the medical care of an inmate. He claimed when he told Lefkowitz this, she got upset and left his office. On Dec. 6, 2010, the superintendent gave the manager a letter notifying him of a meeting to discuss the incident and the alle- gations against him. However, he soon went on medical leave, which led to long-term disability leave and he was informed the meeting would be held when he returned to the workplace. Manager downplayed his anger but evidence was to the contrary e grievance settlement board found the manager's misconduct was not about gen- der, but rather simply an example of a "bad boss." Regardless of the reasons for Lefkow- itz not responding to his order and phone call, there was no doubt it left the manager "infuriated," said the board. e board found the reports and tes- timony of Lefkowitz, the doctor, and the correctional officers were clear and consis- tent that the manager was enraged by the situation and breached "policy, health and safety and simple common sense" when he brought a member of the public who was showing anger into the jail's health care office with a briefcase that had not been searched. e board questioned the manager's insistence that he did not scream or lose control, especially since he acknowledged he was angry and didn't remain calm. e evidence led to the conclusion the manager was out of control, said the board. However, the board found the jail took steps to deal with the situation by asking for reports from Lefkowitz, the doctor and the manager within a few days. It also informed the manager of the allegations and he would likely be subject to discipline before he went on medical leave and planned to continue when he returned. ough Lefkowitz saw him at work, she didn't have to interact with him following the incident. e board found Lefkowitz was verbally abused by the manager and her health and safety rights were violated when an angry member of the public was allowed into the jail with an unsearched briefcase, and again when the manager left her and the doctor alone with the man, contributing to Lefkowitz's psychological issues. However, the employer took action when it received Lefkowitz's complaint. e board determined Lefkowitz was entitled to damages for the harassment and safety breach, but the $75,000 she claimed in her grievance was too much. It ordered the parties to settle on an appropriate amount within 45 days, after which the board would step in and decide. For more information see: • Ontario (Ministry of Community Safety and Correctional Services) and OPSEU (Lefkowitz), 2015 CarswellOnt 1749 (Ont. Grievance Settlement Bd.). « from JaiL nurse on page 3

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