Canadian Employment Law Today

April 15, 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 April 15, 2015 Fired employee's challenge of contract provisions fails Employment agreement met legislative minimums; employee just had a case of regret, says court BY JEFFREY R. SMITH A NOVA SCOTIA court has dismissed a fi red employee's claim that his employment contract was void because of a non-compli- ant severance provision and an inaccurate job description. Antoine Moarbes, 35, was hired in Au- gust 2010 by Heka Electronics, a provider of instrumentation for biomedical and indus- trial research clients in Mahone Bay, N.S., to be an electronics hardware design engineer. At the time of hiring, Heka sent Moarbes an off er of employment. e off er said fre- quent travel to Europe and North America would be required. Moarbes reviewed the off er and suggest- ed some changes, including to the job title. Moarbes also asked for fl exibility in his start time for work-life balance — including leav- ing the offi ce at 3 p.m. on ursdays, one day per week of telecommuting and a shortened work week. In addition, he asked for one month of severance for each year worked in the event of termination without cause. Heka consented to changing the job title and said the travel would only be "a couple of times per year." e company didn't agree with the severance entitlement, and the revised off er of employment carried a ter- mination provision that entitled Moarbes to seven days advance notice of termina- 2 years work, only 2 weeks' notice! pg. 3 Clause would not have met legal minimums later, but it did at time of termination with Colin Gibson CREDIT: BRIAN A. JACKSON/SHUTTERSTOCK Worker fl ames out after slow response to emergency pg. 4 Employer didn't like delay of company fi refi ghter with multiple instances of discipline over short period TERMINATION on page 6 » ASK AN EXPERT pg. 2 Dismissal based on video surveillance INTIMIDATION on page 7 » Aggressive behaviour not a threat, but lack of remorse worthy of suspension AN ARBITRATOR has found an Ontario worker was not guilty of threatening work- place violence but did not reduce the work- er's suspension because he felt no remorse for his intimidating behaviour. e worker was a welder mechanic em- ployed for 20 years at a facility in Sarnia, Ont., operated by Procor, a company that repaired and recertifi ed tank cars. On April 12, 2013, the worker was at a morning meeting discussing whether a tank car he was working on was ready to go. After the meeting, his supervisor walked over to the car to check on it. e work order for the car stated the work had been completed, but the supervisor noticed the refl ective strips and decals that indicated where the car had been requalifi ed had not yet been attached. at work had been assigned to the worker originally, but a few days earlier it had also been assigned to another employee who had since been suspended. e supervisor found the worker leaning on a desk and talking to the lead hand. He asked him to apply the decals and refl ector strips, and the worker stood up and yelled into his face "Why didn't you get Tom to do it yesterday? He stood around all day and did f--- all and you watched him." e supervi- sor claimed the worker was about 12 inches away and he could feel the worker's spit on his face as he shouted. e supervisor he backed away and told the worker he to do the work, and the work- er yelled, "Where's Tom?" e supervisor replied that Tom was absent and he was giv- ing the worker direction. to which the work- er said, "Don't treat me like a child." e supervisor testifi ed he felt threatened and thought the worker might hit him. He

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