Canadian Employment Law Today

May 13, 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 May 13, 2015 Employer must pay $30,000 for defaming former employee Company owners made false accusations against former employee to clients BY JEFFREY R. SMITH TWO BRITISH COLUMBIA compa- ny owners must pay a former employee $30,000 for defamatory comments they made to clients in the business following an acrimonious termination, the B.C. Supreme Court has ruled. Balazs Batyka joined Binary Environ- ments, a web-hosting and software devel- opment company in Vancouver, in 1998. He became a one-third shareholder in the company and provided technical and sales support. Like all Binary staff , Batyka was given a personal email address on a Binary-owned domain name. He also had an email address on another Binary-owned domain name that was used for business purposes, as well as shared access to general business email addresses. Staff members were often al- lowed to keep their personal email address- es even after leaving employment at Binary. In 2008, the owners of Binary sold the company to Dynaworx, another web-host- ing and software development company, which was owned by Jonathan and Lucy Barber. Batyka signed an agreement with the Barbers to continue his relationship with Binary in the same capacity for a mini- Injured worker wins 14-year battle over ability to do job pg. 3 Suitability of job determed without modifi cations with Tim Mitchell CREDIT: ISAK55/SHUTTERSTOCK Worker's work refusal escalates pg. 4 Suspension for refusing assigned work leads to altercation and dismissal for breach of harassment and violence policy CLIENTS on page 7 » ASK AN EXPERT pg. 2 Asking for information for family status accommodation WORKER INHALED on page 6 » Ordering drug test OK; dismissal after positive test not AN ARBITRATOR has determined the Canadian Pacifi c Railway (CP Rail) was en- titled to order a substance test of a worker following an incident for which the worker wasn't at fault, but shouldn't have dismissed the worker after he tested positive for mari- juana. Ron Schotts, 50, was a locomotive engi- neer for CP Rail in Cranbrook, B.C. rough 29 years of service with CP Rail, Schotts had one instance of discipline on his record — a violation of one of the railway's cardinal rules in December 2011. On Dec. 4, 2013, Schotts and a conduc- tor with whom he was crewed were assigned to a train in the morning. ey attended a job briefi ng and took a cab to meet the train. After receiving a radio message as to what track the train was on, they boarded the train. However, their paperwork didn't match the train and asked a clerk about the lead locomotive numbers. e clerk told them they had been issued the wrong loco- motive numbers but they were on the right train. Unfortunately, the clerk was wrong, but since both trains had the same amount of cars, Schotts and his conductor believed the clerk. Before they left, they checked again with the clerk, who once again mistakenly confi rmed they were on the right train. ey tried three times to contact a depot to clarify things, but they weren't successful. e crew contacted train control and ad- vised of the new lead locomotive number, after which they received clearance to de- part. However, the train they were on was carrying dangerous commodities for which they didn't have the proper paperwork. CP Rail eventually determined the crew was on the wrong train and they were re- moved and sent for substance testing. e basis for the testing was that Schotts and his conductor were transporting dangerous commodities without their knowledge or proper documentation. CP Rail's drug and alcohol procedures required testing after an incident or "any

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