Canadian Employment Law Today

Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2015 anything and said he was on a tab. As the interview continued, the worker became evasive and suggested the cafeteria staff had made mistakes with his tab, the chef was a crook, and he was being set up. e HR manager spoke to the chef and cashier and they both said the worker had never brought a juice to the cash register. A review of his tabs showed he had paid for one bottle of juice in the previous two weeks. On Dec. 22, the HR manager informed the worker's supervisor and Messier-Dowty's vice-president of production about the mat- ter. ey agreed that workplace theft was a serious breach of trust, especially since the worker denied it and tried to blame others. ough the worker had 17 years of service with a clean disciplinary record, there was indication of multiple instances of theft, which made dismissal automatic in the eyes of the employer. e next day, the worker was dismissed for "a very serious breach of your employee obligations, namely the obli- gation to be honest and the company's need to be able to trust you." At the dismissal meeting, the union presi- dent spoke privately with the worker and told him he was being dismissed not for theft, but for not admitting to it or showing remorse. e worker continued to deny and rationalize his misconduct, and the union president told him there would be no chance of reinstatement if he didn't "come clean." e worker changed his attitude and, when they met with management again, apolo- gized. However, management didn't accept that he was truly remorseful and stuck with the dismissal. e arbitrator noted that discharge was "the most severe form of workplace disci- pline" and "workplace theft is universally considered to be a serious employment of- fence which merits a significant disciplinary response." However, this didn't mean theft should automatically lead to discharge, but depended on how serious it was, said the ar- bitrator. e arbitrator found the most impor- tant factors were "those which speak to the employee's character and trust rehabilita- tion potential." In this case, the worker had engaged in at least three separate acts of "premeditated petty theft" in four days, he denied any wrongdoing and continued to deny up until he knew he was going to lose his job, he refused to "come clean" until of- ficially terminated, and he tried to deflect the blame. ough the worker had a clean discipline record, the arbitrator found this was likely because he hadn't previously been caught stealing, as others were aware of his behav- iour and the number of times he did it in the short period of time he was being observed. In addition, the fact he acted normally while doing it suggested it was "business as usual" when stealing the juice, said the arbitrator. e arbitrator agreed that the worker was "truly remorseful," but found it was because he lost his job, not the fact he stole items from the cafeteria. Even if he did regret stealing, however, it was not until he was fired, which was "too little, too late," said the arbitrator in upholding the dismissal. See Messier-Dowty Inc. and IAMAW, Local 905 (Brouckxon), Re, 2015 CarswellOnt 13284 (Ont. Arb.). More Cases /Ask an Expert Employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog includes a tool for readers to offer their comments, so discussion is welcome and encouraged. The blog features topics such as hidden disabilities, employee criminal charges, employees on social media, and reasonable notice. You can view the blog at www.employmentlawtoday.com. Worker became sorry after he was dismissed « from JUICING on page 1 telephone conversation, the employee wrote to the new employer shortly thereafter con- firming her continuing interest in the posi- tion and her awareness that there would be some delay in the commencement of her employment. At trial, she testified that she understood from the parties' discussions that she would likely start in February but that a March date was possible. e employee telephoned the new em- ployer in February and was told that June or July was more likely and, if she could not wait, she should look for other employment. She did so and eventually found employ- ment at a reduced salary. e trial judge found a concluded contract of indefinite hiring that was to commence no later than March 2. e employer had breached that contract. Reasonable notice of the termination was six months under the circumstances, which included the fact that the employer had induced the employee to leave her former employer and had done so at a time when economic conditions made it difficult for the employee to find replace- ment employment. e delay in Horvath was extreme. It is unlikely a delay of a few days would consti- tute a substantial or fundamental alteration of even a firm start date for employment, However, an employee might reasonably re- gard a longer delay as significant. An employer faced with a delay in provid- ing work under an accepted offer of employ- ment would be well-advised to inform the new employee at the earliest possible time and to be straightforward and honest about the reasons for the delay. If an anticipated unilateral delay of an agreed-to start date is likely to be more than minimal, the employ- er should be aware that its new employee might be in a position to claim constructive dismissal and reasonable notice without ever having worked a day. For more information see: • Cominco Ltd. v. USWA, Local 9705, 2000 CarswellBC 4681 (B.C. Arb.). • McNeill v. Ontario (Ministry of the Solici- tor General & Correctional Services, 1998 CarswellOnt 2309 (Ont. Gen. Div.). • R. v. Ample Annie's Itty Bitty Roadhouse, 2001 CarswellOnt 6078 (Ont. C.J.). • Yellowknife (City) v. Denny, 2004 Carswell- NWT 15 (N.W.T. Terr. Ct.). • Potter v. New Brunswick (Legal Aid Ser- vices Commission), 2015 CarswellNB 87 (S.C.C.). • Horvath v. Joytec Ltd., 1989 CarswellSask 329 (Sask. Q.B.). 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. Delay in start date « from ASK THE EXPERT on page 2

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