Canadian Employment Law Today

Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2015 More Cases Video contradicted denials « from ALTERCATION on page 1 grade or direct demeaning comments to a child, as this may constitute emotional abuse." e investigation also found Hatzan- tonis went out of her way to make it clear she was a TDSB employee. e TDSB interviewed a number of wit- nesses, including three students who said Hatzantonis asked them to write statements that cast her in a positive light so she wouldn't lose her job. She apparently told these stu- dents she needed the letters because she was "in trouble with work." She offered to treat the students to whatever they wanted at Mc- Donald's if they wrote the letters. Hatzantonis told the TDSB the student indicated he had a knife, but the video didn't show any such comment — though the begin- ning of the incident wasn't recorded. She also didn't deny she sought witness statements, but said she simply told them to tell the truth. However, she admitted she treated them at McDonald's in exchange for their letters. At the time of her interview, Hatzantonis wasn't aware there was a video of the alter- cation. She initially denied swearing at the student other than one initial comment, and admitted she shouldn't have told the student she would tell his parents he was having sex with another student behind the school. She denied threatening or touching the student. Hatzantonis said that "as a mother" she thought she did what she had to do. Af- ter seeing the video, she conceded she had tugged at the student's jacket and could have handled the situation better. She apologized for not mentioning she had used other ob- scenities and called the student names. She said things had gone too far and she wished she could take back that day. e TDSB informed Hatzantonis she was being terminated and she responded, "I stood up for my daughter and I got fired for that?" e board found that Hatzantonis' con- duct was "extremely troubling" and, though she was off-duty at the time, she identified herself as a TDSB employee and was on TDSB property. In addition, the TDSB had to act as its reputation was at risk from peo- ple who saw the altercation live and online. "It is likely any reasonable fair-minded par- ents or non-parent who viewed or became aware of the incident would be concerned with the TDSB's continued employment of someone who so casually, and spectacularly, undercuts its responsibility to provide role models, and instill appropriate values in stu- dents, and instead engages in verbal abuse of a student," said the board. e board also found Hatzantonis exac- erbated her misconduct by downplaying it and placing students in a difficult position by asking them to be "less than honest about a serious altercation involving another TDSB student," which sent "a most unfortunate message to the students regarding the need to be honest at all times," said the board. e board determined that, though her behaviour was "fuelled by a desire to protect her daughter," this didn't excuse her miscon- duct. See Toronto District School Board and CUPE, Local 4400 (Hatzantonis), Re, 2015 CarswellOnt 6561 (Ont. Arb.). Shorter shift offer was constructive dismissal AN ONTARIO worker was constructively dismissed when a supervisor told her he didn't want to see her again and her em- ployer offered her a shorter shift to avoid him, the Ontario Labour Relations Board has ruled. Lori Anderson was hired by Paula's Food Services, a food concession operating at a steel mill in Sault Ste. Marie, Ont., in June 2007. e concession ran a cafeteria in the steel mill's main administrative building as well as a canteen at the mill. Anderson worked Monday to Friday at the canteen. e owner of the concession, Paula Pyette, worked mainly in the cafeteria but visited the canteen regularly and kept in telephone con- tact. Her son Derek supervised the canteen and was essentially Anderson's direct boss. In August 2012, Anderson was repri- manded and sent home for being disruptive. Anderson told Paula Pyette that Derek had fired her, but Paula told her this was not the case as only she could fire employees. On Aug. 12, 2013, Paula Pyette called the canteen and spoke with Anderson. She asked Anderson to relay a message to an- other employee that the employee was not to leave a $100 bill in the float till for use the next morning, as she had on her previous shift. When the co-worker arrived for her shift, Anderson relayed the message. e co-worker became upset at Anderson and told her she had no right to tell her what to do. e co-worker called Derek Pyette, who soon arrived at the canteen. After speaking with the co-worker, Derek Pyette told Anderson to get out of the can- teen and that he never wanted to see her again. Anderson left and called Paula Pyette, telling her that Derek had just fired her. e owner told Anderson he couldn't fire her, so she would find out what had happened and get back to her. e next day, Paula Pyette met with An- derson outside the canteen. Paula told An- derson Derek didn't want her back at the canteen, but eventually offered her a four- hour daily shift that would allow Anderson to avoid contact with Derek and with the condition that she "not talk too much." An- derson usually worked eight-hour shifts at the canteen, though on occasion she had worked four-hour afternoon shifts. While Anderson and Paula Pyette were talking, Derek arrived and walked up to An- derson, shouting "what are you looking at?" Paula told him to leave them alone and go to the canteen. After he left, Paula Pyette told Anderson to think about her offer and give her an answer the next day. e following day, Anderson declined the offer and said she would not be back. She then filed a dismissal complaint. e board found Anderson was offered an opportunity to return to work after she was told to get out of the canteen, but this offer was only a four-hour shift arrangement on an indefinite basis when she normally worked eight hours a day. at arrangement would "effectively halve Ms. Anderson's reg- ular weekly pay from Paula's Food Services, and this constitutes at least a constructive dismissal of Ms. Anderson's employment that Ms. Anderson was entitled to reject and did so promptly," said the board. e board found it puzzling that Ander- son was sent home on Aug. 12, 2013, for bad behaviour, as there was no evidence that An- derson actually demonstrated such behav- iour. It appeared Anderson only passed on a message to her co-worker and the co-worker reacted negatively. Paula Pyette tried to ex- plain it was Anderson's tone that caused the problem but neither of the Pyettes witnessed the exchange. ey both accepted the co- worker's account without giving Anderson a chance to give her side of the story. e board found it likely that Derek Pyette was displeased with Anderson and he also told his mother he didn't want to see Ander- son in the canteen again. Paula Pyette's offer of a shortened shift was an attempt to deal with her son's strong feelings against An- derson while keeping Anderson employed. However, there was no indication that the offer was temporary and, as a result, was a fundamental change in the terms of employ- ment. e board determined Anderson was constructively dismissed and her resigna- tion was a reasonable response. Paula's Food Services was ordered to provide appropriate termination pay under the act. See 1704717 Ontario Ltd. v. Anderson, 2015 CarswellOnt 6814 (Ont. Lab. Rel. Bd.).

• Cover