Canadian Employment Law Today

December 9, 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 December 9, 2015 Arbitrator throws pool worker a lifeline A CITY OF TORONTO worker who was fi red for breaking into a municipal pool after hours with intoxicated co-workers has been reinstated by an arbitrator. Vasilio Katsuras, 22, was a lifeguard for the City of Toronto. He was fi rst hired by the city at the age of 14 as a wading pool attendant on a part-time basis in the summer. He be- came a lifeguard at 16 and continued to work summers for the city through high school and university. In 2012, he was trained as a "pool in-charge." roughout his time as a part-time seasonal employee, he received favourable performance reviews and had no disciplinary record. Early in the morning of Aug. 29, 2013 — about 1 a.m. — Katsuras went to a private beach party run by a co-worker with a friend who was also a city employee. He said he didn't feel like going, but his friend "dragged" him to the party. ough his friends had been drinking, he didn't have anything to drink and drove to the party. Many of the attendees at the party had been drinking for some time and were in various states of intoxication. ey decided to go "pool-hopping" at a municipal pool nearby. Pool-hopping — where unauthor- ized people gain access to an outdoor pool after hours — was a signifi cant concern for the city, as it was a major safety concern. It was usually done by members of the public, but it was also a tradition among city aquat- ic staff , usually near the end of the season. Senior aquatic staff circulated a key to the nearby pool for the event. At about 2:30 a.m., a large group of par- tygoers walked and drove to the nearby city pool. Katsuras drove himself and three oth- ers. Katsuras was the fi rst to arrive, so he and his passengers sat on some grass nearby. As others arrived, they began testing the doors with their keys, but none worked. Unbeknownst to Katsuras at the time, some of the partygoers on another side of the pool complex started kicking at a set of doors. Glass on the doors broke and they gained access, letting Katsuras and others inside through an emergency exit. About 12 people entered, including Katsuras. He was the only one not intoxicated. e main pool lights were left off to avoid detection. Psychometric testing pg. 3 A valid means of pre- employment screening? with Colin Gibson CREDIT: SHUTTERSTOCK Local offi ce's jean and shorts ban clotheslined pg. 4 Company policy allowed employees to use their judgment; local managers didn't have authority ASK AN EXPERT pg. 2 Breach of company policy condoned by manager? STAFF TRADITION on page 7 » BY JEFFREY R. SMITH AN ALBERTA WORKER is out of luck after challenging his dismissal following his employer's discovery that he was perform- ing work for his own company during busi- ness hours. D'Arcy Ross was hired by IBM Canada in August 2010 to be a senior salesperson. e position was full-time with a salary plus commission and benefi ts. He had access to offi ce space in Edmonton — though he was based in Toronto — but was a mobile employee who was on the road most of the time. He was provided with a company cell- phone and maintained regular contact with his supervisor through phone and email. When Ross was interviewed, he told IBM that he was the president of his own private business that he co-owned with his wife. e business sold and installed custom residen- tial storage components, and Ross was re- sponsible for operations while his wife paid the bills. He said that he had continued to run the business while he worked part-time as a salesperson for another company. How- ever, he assured IBM that if he was hired full- time, he would transfer his responsibilities to his wife. IBM was fi ne with this arrangement and didn't ask Ross to sever his relationship with the private company. As part of his employment agreement, Ross had to agree to follow IBM's business conduct guidelines, which required him to avoid situations where a confl ict of interest could arise — an example of this was given as DERELICTION on page 6 » Employee's pocket dial reveals moonlighting on company time Pocket dial let supervisor listen in on employee visiting customer of employee's private business during work hours

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