Canadian Employment Law Today

Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2015 first re-employment offer in September. Fredrickson declined, saying Newtech's be- haviour had broken the employment rela- tionship. e B.C. Supreme Court found there were no barriers to Fredrickson accepting the of- fer of re-employment and it would have been reasonable for her to do so. By not accepting, she had failed to mitigate her damages stem- ming from the wrongful dismissal, said the court in awarding her compensation for lost wages from her dismissal up to the first re- employment offer of Sept. 26, 2011. Fredrickson appealed the decision, argu- ing the trial court failed to consider bad faith on the part of Newtech and it wasn't reason- able for her to return to the job. e B.C. Court of Appeal found the trial court considered Newtech's offers of re- employment to be efforts to "make whole" Fredrickson's losses. However, the initial of- fers in September didn't offer compensation for lost income up to that point, to which she was entitled for being wrongfully dis- missed. e subsequent offers in October and November provided for compensation for lost pay but only up to the September of- fer, which was still less money than what she was entitled to for wrongful dismissal, said the appeal court. "(e trial decision) fails to recognize that the earliest offer for compensation made in October still contemplated a loss of about one month's income, or over eight per cent of Ms. Fredrickson's annual income, that is, it was not a trifle," said the Court of Appeal. "Further, it was made while Newtech was maintaining that Ms. Fredrickson was not dismissed, and so entitlement to any com- pensation was still an issue." e Court of Appeal also found Fredrick- son's trust in Newtech was eroded by the owner's discussion with another employee that Fredrickson would be too embarrassed to return to work — Newtech had a small staff and he breached Fredrickson's trust and confidence with this discussion. In addition, Fredrickson had concerns over returning to work given the lack of discretion and trust demonstrated by the owner, which made any chance of repairing the employment re- lationship slim. e Court of Appeal overturned the B.C. Supreme Court's decision and ordered the case back to the trial court to determine Fredrickson's notice entitlement. See Fred- rickson v. Newtech Dental Laboratory Inc., 2015 CarswellBC 2272 (B.C. C.A.). More Cases Offers didn't cover full period of lost pay « from REFUSAL on page 1 Meat processing plant worker throws fat at co-worker, throws job away AN ARBITRATOR has upheld the dis- missal of an Ontario meat processing plant worker who repeatedly threw fat from cow carcasses at a co-worker. Said Mohamed was hired as a general la- bourer and steam vacuum operator by Car- gill, a Winnipeg-based food processing com- pany, in September 2012. Mohamed worked at one of Cargill's Ontario facilities on an assembly line. His job involved standing on a platform cleaning hanging cow carcasses. He had one written warning for harassment on his disciplinary record. One of Mohamed's co-workers performed a different function on the assembly line and was stationed below and to the side of Mo- hamed. In January 2014, the co-worker no- ticed pieces of fat falling on him from above. He initially thought it was an accident, but when he looked up, Mohamed was staring down at him. is happened several times and one time when the co-worker looked up, he said Mohamed made a rude gesture with his hand. Eventually, the co-worker said he told Mohamed to stop, but Mohamed re- sponded by grabbing his crotch in another rude gesture. Mohamed continued to throw fat at the co-worker, who eventually got sick of it. He estimated Mohamed was throwing as much as 80 pieces of fat at him over the course of a shift. He asked Mohamed if he had a prob- lem with him and Mohamed responded, "don't act like a tough guy." He later told the co-worker to shut up and "if you want to fight, let's fight right now." Another employ- ee told them not to fight, but the co-worker was feeling bullied at that point. An employee nearby noticed Mohamed throwing fat at the co-worker and making rude gestures at him. He told the supervisor about it and the supervisor contacted hu- man resources. ey met with Mohamed, who denied he was intentionally throwing fat at the co-worker. He explained pieces of fat would get stuck in the vaccuum and he would dislodge them and throw them to the ground. e supervisor told Mohamed the pieces should be slid to the ground, not thrown. Concerned with safety issues from excess fat on the ground, the supervisor started monitoring Mohamed. He saw Mohamed clearly throwing fat at the cow-worker and hit the co-worker in the helmet. e supervi- sor yelled at Mohamed to stop and contact- ed human resources. Later that same day, the co-worker reported Mohamed's suggestion they fight. Cargill determined that Mohamed had thrown "a substantial amount of fat" at his co-worker over multiple shifts. In addition to the co-worker, another employee and the supervisor had both reported seeing it hap- pen. Cargill considered this a serious safety issue since the fat on the floor could cause someone to slip. e company had zero tolerance for safety violations and its writ- ten policy explained progressive discipline would not be applied to such situations. In addition, if government inspectors or cus- tomers came to the facility and saw what was happening, it could harm Cargill's business. Cargill also considered Mohamed to have lied during the investigation when he denied throwing the fat and saying it had simply fallen. Cargill was also concerned that Mo- hamed's conduct amounted to harassment of his co-worker. Employees were trained annually on the company's obligations under Ontario's Bill 168 harassment and workplace violence law, so Mohamed ought to have known such behaviour was unacceptable. Cargill terminated Mohamed's employ- ment on Jan. 28, 2014. Mohamed continued to deny any misconduct. e arbitrator found the co-worker, su- pervisor, and other employee were credible witnesses and had no reason to lie. Mo- hamed's denial of any misconduct couldn't stand up in the face of the other accounts, said the arbitrator. e arbitrator also found by throwing fat at his co-worker, Mohamed created a safety risk. By making rude gestures at the co-worker and suggesting a fight, he was harassing and threatening the co-worker as well. Since Mohamed never acknowledged his misconduct or apologized, it was likely he would engage in similiar misconduct in the future, said the arbitrator. Cargill had a statutory obligation to pro- tect its workers from harassment and unsafe conditions, so it had just cause to dismiss Mohamed, said the arbitrator. See Cargill Ltd. and UFCW, Local 175 (Mohamed), Re, 2015 CarswellOnt 11065 (Ont. Arb.).

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