Canadian Employment Law Today

October 14, 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 October 14, 2015 Refusal of re-employment off er ignoring lost wages not a failure to mitigate A DISMISSED British Columbia employee did not fail to mitigate her damages when she refused her employer's off er of re-employ- ment, the B.C. Court of Appeal has ruled. Leah Ann Fredrickson was a registered dental technician assistant with Newtech Dental Laboratory in Vancouver. Over a pe- riod of more than eight years, Fredrickson worked for Newtech and had a good work- ing relationship with Newtech's owner. In 2010 and 2011, Fredrickson's husband fell ill and her son was seriously injured. Fred- rickson was stressed due to these events and on April 27, 2011, she told Newtech's owner she might not be back the next day. ough she didn't give any more notice than that, in the past she had been able to take medi- cal leave when she needed. Sure enough, Fredrickson took a medical leave of absence starting on April 28, but this time Newtech disputed her entitlement to the leave. On July 11, Fredrickson's doctor told her she would be fi t to return to work on July 20. Fredrickson advised Newtech of the date and provided a doctor's note. When Fredrickson returned to work on July 20, Newtech's owner told her she was being laid off due to insuffi cient work. e company gave her a record of employment (ROE) indicating she had been laid off and a letter of reference. Fredrickson told Newtech she believed she had been dismissed and Newtech re- sponded by asking her to return to work on Sept. 26. e company also said if she had been dismissed, she was obligated to accept the off er of re-employment as mitigation of her damages. Fredrickson sued for wrongful dismissal on Oct. 18. Newtech off ered to hire her back, one week later and again in early November, at the same position, salary, and benefi ts with compensation for lost wages up to the Termination payment of 'salary' in breach of ESA pg. 3 Provision to pay salary neglected to include benefi ts with Stuart Rudner CREDIT: GIL C/SHUTTERSTOCK.COM Foreign worker sent home after using old work permit pg. 4 Worker's failure to demonstrate intention to return home results in exclusion order EMPLOYEE'S on page 6 » ASK AN EXPERT pg. 2 Paying for a single-day trip OFFERS on page 7 » Online posts disparaging top customer not enough for dismissal Comments harmed company's reputation and relationship, but worker had a good record and was remorseful afterwards BY JEFFREY R. SMITH A BRITISH COLUMBIA worker's angry online posts about his employer's biggest customer were not suffi cient cause for dis- missal, an arbitrator has ruled. Maxam Bulk Services is a manufacturer and distributor of explosives to clients in the mining industry. Based in Salt Lake City in the U.S., the company's Canadian branch is based in British Columbia. Ninety per cent of Maxam's business in Canada was for one customer — B.C.-based Teck Coal, making Teck Maxam's largest customer globally. Sheldon LeBrun was a bulk truck driver and spare lead hand for Maxam at Teck's Greenhills Mine. His truck driver duties involved loading trucks with chemicals and transporting them to mines, while his spare lead hand duties involved recording any safety concerns or defi ciencies at the mine. He made such reports on a daily basis. In 2014, LeBrun recorded that an electric

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