Canadian Employment Law Today

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Read the facts and see if the judge agrees YOU MAKE THE CALL 8 IF YOU SAID the employer had just cause for dismissal, you're right. e arbitration board found there was a potential for dam- age to company property and the two em- ployees, but no actual damage or injury hap- pened. e extent of any potential damage was "conjecture" and had no defi nite proof, said the board. e board found the cherry bomb fi re- cracker didn't have the same risk as a larger explosive and was some distance away — 90 feet — from the tanks. is was well outside the distance —7.5 metres, which was less than 25 feet — where no smoking was per- mitted. As a result, the danger of Allen's mis- conduct was exaggerated by the Saskatoon Co-op, said the board. However, the board agreed Allen's mis- conduct was serious because "it is reckless to set off a fi recracker at a gas bar" no matter how far away from the pumps and tanks it was. e optics of the incident were bad and the company had to react to what Allen him- self acknowledged was "stupid." e board also noted the misconduct occurred shortly after his performance review indicated he needed improvement. Given Allen's relatively short service time and record of previous discipline combined with his poor performance review, the board found Saskatoon Co-op had just cause to dismiss Allen. " e fi recracker incident was certainly not a step in the right direction for (Allen) to take if he intended to show any real eff ort to improve his performance and retain his job," said the board. For more information see: • Saskatoon Co-Operative Assn. Ltd. and UFCW, Local 1400 (Allen), Re, 2015 Car- swellSask 463 (Sask. Arb.). Cherry bomb blows up worker's job THIS INSTALMENT of You Make the Call features an gas station employee who set off a fi recracker at his workplace. Andrew Allen, 20, was a pump attendant at a gas station run by the Saskatoon Co- Operative Association. e gas station had sixteen gas pumps connected to eight un- derground holding tanks containing gaso- line and diesel fuel, as well as a large propane stack containing liquefi ed propane gas. When Allen was hired in 2012, he received orientation and training, including health and safety training which he acknowledged understanding with his signature. Allen was given a written warning for being late to work in November 2013, another writ- ten warning for missing a shift in March 2014, and a two-week suspension for leaving early in May 2014. Shortly after returning from the suspension in June, he received an unsatis- factory performance review indicating his performance needed improvement. Another review was scheduled for October to see if he improved over the next few months. On July 7, 2014, Allen worked a shift that ended at 8 p.m. At the end of the shift, he asked his two co-workers where he could buy fi recrackers as the Canada Day fi re- works he had seen a week earlier had peaked his interest. ey told him about another gas station that sold fi recrackers, so Allen went there and bought four cherry bombs and some sparklers. Allen returned to the Saskatoon Co-op gas station to show his co-workers. One of them — who was working as the pump at- tendant — suggested they light the cherry bombs in the parking lot behind the gas bar, so they went to the lot about 90 feet from the propane tank. Allen put the cherry bomb in a cup with cat litter, lit the fuse, and ran back to the store — while fi lming himself with his cellphone. When the fi recracker went off , Allen was surprised at how loud it was and realized he shouldn't have done it. e next day, the other co-worker who had been the evening manager reported the activities from the previous night. e man- ager met with Allen on July 9 and Allen ad- mitted to setting off the fi recracker. He apol- ogized and off ered to show the video he had taken on his phone. e manager declined, as she had video of the incident from the gas station's surveillance cameras, though she appreciated the apology. e manager prepared an employee dis- cipline report for the Saskatoon Co-op hu- man resources department, acknowledging that Allen admitted to and apologized for his actions but noting he had "been on a down- ward slide for the past few months" regard- ing his previous instances of misconduct leading to discipline. ough Allen had said nobody else had been involved, the video surveillance revealed the co-worker's par- ticipation. It was determined Allen was guilty of se- rious misconduct by setting off an explosive near fuel tanks. On Aug. 5, 2014, the company terminated Allen's employment for "lack of judgment, gross negligence, illegal act and blatant disregard to safety and the Co-oper- ative's assets." At the termination meeting, Allen didn't apologize or show remorse, as he felt he had already done so. e co-worker who was with Allen was also terminated, but was reinstated after serving a six-month sus- pension. e union grieved the dismissal, saying Allen's misconduct wasn't excessively dan- gerous as it was just a cherry bomb and it was some distance from the pumps and tanks. Additionally, Allen accepted responsibility for his misconduct, said the union. YOU MAKE THE CALL Should the employee be reinstated and given another chance? OR Did the employer have just cause for dismissal?

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