Canadian Employment Law Today

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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 YOU MAKE THE CALL Did the company fi re Kukhar? OR Did Kukhar quit his employment? Worker gets towed over parking dispute THIS INSTALMENT OF You Make the Call features an employee who kept parking in a restricted area of the company parking lot. Volodimir Kukhar worked for Likro Preci- sion, an aerospace company in Mississauga, Ont., which makes special components for aircraft, much of it for the military. He was hired in 2004. Due to the nature of Likro's business, se- curity at its plant was high. Parking outside the building was restricted and the com- pany had cameras both inside and outside. ough there were no signs indicating "no parking," the company maintained specifi c restricted areas. Kukhar had a habit of parking his car near the entrance to the building, which was a "no parking" area. Management asked him to park in a proper area, but Kukhar continued to park in the restricted area. On Oct. 3, 2014, Likro's owner called Kukhar into his offi ce and asked him why he didn't park in the proper area that day. Kukhar replied that it was raining, so he wanted to be near the entrance. e owner off ered Kukhar an umbrella, but he refused it. Later that day, Kukhar moved his car but went back to the owner's offi ce and said "I can't work like this. I don't feel safe. I'm going home." He left and went the hospital, where it was discovered he had high blood pres- sure. After Kukhar left the plant, the owner told Likro's controller they needed to pre- pare a fi nal warning letter. Four days later, Kukhar again parked in the restricted area, so the owner gave him the fi - nal warning letter. e owner asked Kukhar to sign the warning letter, but Kukhar re- fused and said he wanted to speak to his law- yer. Kukhar was advised the signature was just to acknowledge having received the let- ter, but Kukhar still refused. He claimed he had asked the company next door if he could park on its property beside Likro's entrance, and the company agreed. e owner asked Kukhar what his prob- lem was and Kukhar loudly said he would quit. e offi ce door was open and the con- troller, in the offi ce next door, could hear what was being said. Kukhar once again reportedly said he was quitting. However, Kukhar claimed the owner told him he was fi red and Kukhar repeated that fact to everyone in the offi ce so they would know. Nobody who was in the offi ce at the time re- ported hearing Kukhar say this. Kukhar and the owner walked back to Kukhar's machine so Kukhar could get his tool box. e operations manager helped take the tool box to Kukhar's car and Kukhar left after returning his company fob and stamp. On Oct. 9, Kukhar called the controller to ask when he was going to get his record of employment and what the reason for termi- nation would be on it. e controller replied "quit" and Kukhar said that wasn't right. A couple of hours later, Kukhar showed up looking for the owner, but the owner wasn't there so he left. About 30 minutes later, the shift supervi- sor came to the owner's offi ce and told him Kukhar was back working at his machine. Kukhar had told the supervisor to tell the owner he was there to work. e owner asked Kukhar what he was doing and said he was trespassing because he didn't work there anymore. e owner testifi ed Kukhar ignored him, but Kukhar claimed he said he didn't quit and asked if the owner was fi ring him, to which the owner replied in the affi r- mative. e owner called 911 to have police re- move Kukhar from the building. Police ar- rived and gave Kukhar a warning. Shortly thereafter, Kukhar called 911 himself asking for an ambulance and saying he was experi- encing chest pain. He spent the night in the hospital. Kukhar then fi led a complaint with the Ontario Labour Relations Board, saying he was fi red and deserved severance pay. IF YOU SAID Kukhar quit his employ- ment, you're right. e Ontario Labour Relations Board found the owner and con- troller were clear in their evidence and had no reason to lie about it. It was also unlikely the company wanted to terminate Kukhar's employment because he was a skilled worker with 10 years of experience, which were hard to fi nd for Likro. e board found Kukhar's version of events didn't have credibility, particularly since he claimed the owner told everyone in the offi ce Kukhar was fi red, yet no-one in the offi ce at the time could corroborate this. e board also found Kukhar's actions confi rmed his intention to quit when he went to get his tool box and turned over his fob and stamp. ough he returned to Likro two days later to protest that he didn't quit, he didn't do so on the day he did it. "It is clear that (Kukhar) intended to 'quit' his employment with Likro and acted ac- cordingly," said the board. "While (he) may have had a change of heart on Oct. 9, 2014, that does not alter his decision of Oct. 7, 2014." For more information see: • Kukhar v. Likro Precision Ltd., 2015 Car- swellOnt 16394 (Ont. Lab. Rel. Bd.).

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