Canadian Employment Law Today

No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. We acknowledge the financial support of the Government of Canada, through the Publications Assistance Program (PAP), toward our mailing costs. GST #897176350 Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: Carswell.customerrelations @thomsonreuters.com Website: www.employmentlawtoday.com Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Carswell Media: Karen Lorimer Publisher: John Hobel Managing Editor: Todd Humber Editor: Jeffrey R. Smith E-mail: Jeffrey.R.Smith@thomsonreuters.com ©2015 Thomson Reuters Canada Ltd. All rights reserved. Emplo y ment Law Today Canad ad a ian www.employmentlawtoday.com How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 IF YOU SAID there was just cause for dis- missal, you're right. e board found the general supervisor was more credible, so it was likely he told Tsigu to go home if he wasn't going to work, rather than "we don't need your service anymore." But regardless of what was actually said, the board found Tsigu's defi ant behaviour when he refused to accept his title of machine operator and continued to stand beside his machine with- out working was "disobedience and wilful misconduct." e board also found that there was no in- tention to terminate Tsigu's employment be- fore his misconduct, and Eston worked hard to help him understand that although the team leader position didn't exist any longer, he still had the position of machine operator and was a valued employee. Ultimately, Tsigu didn't show up for work for three days after going home and didn't contact the company, which was a violation of the sick leave policy. e board determined Tsigu refused to do his job and demonstrated insubordinate be- haviour, giving Eston just cause for dismissal without any notice or severance pay. For more information see: • Tsigu v. Linamar Corp., 2014 CarswellOnt 12174 (Ont. Lab. Rel. Bd.). Worker not happy with losing team leader position THIS INSTALMENT of You Make the Call involves an employee who was fi red after failing to comply with his employer's atten- dance management policy. Sebhatu Tsigu was a machine operator for Eston Manufacturing, a manufacturer of auto parts in Guelph, Ont. Hired in Novem- ber 2004, Tsigu was promoted to the posi- tion of team leader in April 2007. His duties included helping the lead hand maintain machinery on the production line and oper- ating machinery. In November 2008, there was a downturn in the automotive industry and Eston had to restructure its business. is restructuring included the elimination of the team leader position and Tsigu was required to return to the position of machine operator, but his pay remained the same and he was still expected to help the lead hand occasionally. On Oct. 17, 18 and 19, 2012, Tsigu called in sick. When he reported to work on his next scheduled day — Oct. 22 — the line su- pervisor asked him to sign a form confi rm- ing his absences. Tsigu refused to sign the form because he felt he wasn't given the op- portunity to read it. e general supervisor went to speak to Tsigu about the form and found Tsigu stand- ing beside his machine. Tsigu then told the supervisor he was a team leader and not a machine operator. e general supervisor told him the team leader position no longer existed and took him to be refusing to work. Tsigu met with management, who reiter- ated there was no longer a team lead posi- tion and his job was that of machine opera- tor. Tsigu returned to the operating line, but when the general supervisor checked on him a little later he found Tsigu standing by the machine. Tsigu was sent to the hu- man resources department, where he once again stated he wanted to be a team leader. e HR department gave him a form to sign that stated he didn't accept being a machine operator and was requesting to be a team leader. Tsigu signed the form. Tsigu denied he refused to work as a ma- chine operator and said he requested to work as a team leader when he returned from being off sick because he was still feel- ing sick. He said he didn't tell anyone he was still sick because he didn't want to get into more trouble. e same day Tsigu signed the form in HR, the general supervisor checked on him again and found him standing by his machine. He told Tsigu "If you are not willing to work as a machine operator, I have no other choice but to send you home." Tsigu went home and the supervisor expected him to return the next day, but Tsigu didn't show up for the next three days. At that point, it was believed Tsigu had quit his job. Tsigu claimed the supervisor told him "we don't need your service anymore," which he took to mean he was being terminated. On Oct. 26, 2012, Eston sent him a letter saying he was terminated due to failure to report to work or notify management of his absence from Oct. 23 to 25. e company said this left it with no option but to terminate his employment. YOU MAKE THE CALL Did the employer unfairly dismiss the employee? OR Was there just cause for dismissal?

• Cover