Canadian Employment Law Today

6 | May 13, 2015 Canadian HR Reporter, a Thomson Reuters business 2015 Cases and Trends right to remain in Red Deer, the court took into account several factors, including the dynamic nature of the employer's operation, the fact that it operated from several offices throughout Alberta and Saskatchewan in both rural and urban centres, the fact that field work was known to be a requirement of employment, and the fact that the employee had previously moved from Swift Current to Red Deer. In Wilson v. UBS Securities Canada Inc., the court refused to imply a term allowing the employer to relocate the employee. e court found that relocation was not an expectation when the employee was hired; that the em - ployer's subsequent affiliation with an inter- national firm did not alter the parties' expec- tations; and that prior relocations had been negotiated with employees on a case-by-case basis. In the circumstances of the case be- fore the court, the employer had repudiated the employment contract when it closed its Vancouver office and advised the employee that she would be expected to move to San Francisco. Assuming that the employee was able so show an express or implied contractual right to work from home, the employee would still be required to prove that right was an essen - tial term of the employment contract and the breach was objectively significant. is would involve an assessment of the facts from the viewpoint of a reasonable person in the po - sition of the employee. e employee's own perception of the significance of the employ- er's conduct is not determinative. However, if the employee regarded her ability to work from home as crucial, the em- ployer had been made aware of its importance to the employee at the time of hire and the employee accepted employment on the basis of the employer's promise to permit work at home, a change to in-office work would very likely constitute constructive dismissal. In analogous circumstances, withdrawal of rights of specific importance to employees has been found to amount to constructive dismissal. In Corey v. Dell Chemists (1975) Ltd., a requirement that an employee start work at 8:00., five days a week, was a constructive dismissal where a four-day workweek and a 9 a.m. start time was a term of the employment contract. e evidence showed that it was a paramount consideration for the employee to give priority to her childcare obligations and that the employer had understood and agreed to her terms. In Wedewer v. Hoodoo (Rural Municipal - ity No. 401), an employee was found to have been constructively dismissed when his em- ployer withdrew its tacit permission for him to take time off work as required for seeding and harvesting. e employee's ability to take time off to complete essential work on his farm was a fundamental term of his employ - ment contract. e most effective way to avoid the uncer- tainty that surrounds such fact-based deci- sions is to expressly address the matter dur- ing the hiring process. If an employer wishes to retain the right to withdraw work-at-home privileges at some later date, it should ex- pressly reserve that right. Conversely, if an employee regards the work-at-home arrange- ment as critical to her acceptance of the posi- tion, the employee should advise the employ- er of that fact and obtain a written promise acknowledging that the arrangement is an essential term of the contract. It is worth noting that care should be taken in drafting any express right. As indicated in Ernst v. Destiny Software Productions Inc., a right to work from "home" may mean differ - ent things to different people. In that case, the employee asserted that his contractual right to work from "home" encompassed a right to work from Mexico when he relocated there from Alberta. Although he was ultimately unsuccessful, the ambiguous nature of the parties' communications opened the door for argument that could have been closed by more precise drafting. For more information see: • Johnstone v. Canada (Border Services Agency), 2014 CarswellNat 1415 (F.C.A.). • Potter v. New Brunswick (Legal Aid Ser- vices Commission), 2015 CarswellNB 87 (S.C.C.). • Smith v. Viking Helicopter Ltd., 1989 Car- swellOnt 750 (Ont. C.A.). • Rasanen v. Rosemount Instruments Ltd., 1989 CarswellOnt 768 (Ont. H.C.). • Brown v. Pronghorn Controls Ltd., 2011 CarswellAlta 1933 (Alta. C.A.). • Wilson v. UBS Securities Canada Inc., 2005 CarswellBC 875 (B.C. S.C.). • Corey v. Dell Chemists (1975) Ltd., 2006 CarswellOnt 3513 (Ont. S.C.J.). • Wedewer v. Hoodoo No. 401 (Rural Mu- nicipality), 2004 CarswellSask 738 (Sask. Q.B.). • Ernst v. Destiny Software Productions Inc., 2012 CarswellBC 1058 (B.C. S.C.). Tim Mitchell practices management-side labour and employment law at Norton Rose Fulbright's Calgary office. He can be reached at (403) 267-8225 or tim.mitchell@norton- rosefulbright.com. « from ASK THE EXPERT on page 2 Worker inhaled the day before other significant work incident/accident or a near miss which indicated a serious lack of judgment or unexplained human response on the part of the employee involved that had significant potential for more serious consequences." e procedures also stated testing is not justified if "the act or omission of the individual could not have been a con- tributing factor to the incident." Schotts' test was negative for everything except a positive urine drug test. Schotts ex- plained he had consumed "one inhalation of marijuana" the day before, about 20 hours before his shift. CP Rail's investigation determined that Schotts' behaviour under the circumstanc- es was not culpable and he had performed his duties in a professional manner. ere- fore, he wasn't disciplined for the incident. However, after the positive urine test for marijuana, the railway dismissed him effec- tive Jan. 3, 2014, for "conduct unbecoming an employee of Canadian Pacific." e arbitrator found the situation could be considered a significant incident, since Schotts and his conductor were transport- ing dangerous commodities without proper documentation and without knowing it. At the time CP Rail discovered the mistake and removed the crew from the train, it could not have known Schotts' conduct didn't contribute to the situation — this was only established after the investigation. Since time is of utmost importance in substance testing, it was reasonable to send Schotts for immediate testing before he was excluded as a possible contributor to the incident, said the arbitrator. e arbitrator also found Schotts worked in a safety sensitive position where it was essential he not be impaired while at work. However, it was well established that a posi- tive drug test — particularly a urine test showing marijuana — does not establish impairment while on duty. Traces of mari- juana can stay in the system for some time and can only show past use, not current im- pairment, and Schotts admitted to smoking marijuana the day before, which would ex- plain the test result, said the arbitrator. e arbitrator also gave credit to Schotts for saying after the investigation that he would not use marijuana again in any cir- cumstances while working for CP Rail. He also attended an addiction services centre after his termination, which determined he had "a low probability of having a substance dependence disorder," and Narcotics Anon- ymous meetings. e arbitrator found there was no mis- conduct by Schotts and ordered CP Rail to reinstate him with compensation for lost wages and benefits. See Canadian Pacific Railway and Teamsters Canada Rail Con- ference (Schotts), Re, 2015 CarswellNat 750 (Can. R.O.A.). « from ORDERING DRUG TEST on page 1

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