Canadian Employment Law Today

Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2016 Cases and Trends/More Cases residence. He followed proper procedure to secure himself when he climbed up to secure a new service line along a messenger cable. However, at another spot, noticed he hadn't cut a service line to the house. He reached over to cut the line without tying himself in and when the line was cut, it released some ten- sion and caused the ladder to bounce. Zerebe- ski lost his footing and slid down the ladder about 20 feet, breaking his leg at the bottom. He also wasn't wearing his safety boots. Zerebeski was taken to the hospital, where he had surgery on his leg. His manager ar- rived and he told her it was his fault because he hadn't used his bungie. His manager then spoke to a resident at the house who had wit- nessed the ladder bounce and cause Zerebe- ski to fall. e manager met with Zerebeski at the hospital after his surgery so she could file an accident report, and Zerebeski described the accident, admitting he had used poor judgment and should have been strapped in. Zerebeski later claimed he didn't remember this conversation and that he was actually tied in and just lost his footing. A few days later, Zerebeski's manager told an area service manager about the accident, and the service manager said she wasn't surprised because she had audited one of the training courses and noticed Zerebeski hadn't been paying attention. On Aug. 19, Telus informed Zerebeski that he wouldn't qualify for his next sched- uled progression salary increase because he had failed to follow safe work practices. A few days later, a speeding ticket issued to Zerebeski for going 93 kph in a 50 kph con- struction zone was found in his company truck. Zerebeski later said he had voluntarily paid the fine rather than contest it. is vio- lated the Telus employee handbook, which stated employees were to tell their manager of any driving violations so the manager could review and determine if disciplinary action was required. Zerebeski received workers compensation benefits until Jan. 9, 2014. During this time, his manager considered the speeding ticket and his failure to follow safety procedures. At the time of his accident, Zerebeski hadn't yet completed his 120-day probationary pe- riod and the collective agreement permitted Telus to terminate a probationary employee without cause if the employee was deemed to be unsuitable or unsatisfactory. As a re- sult, the manager determined Zerebeski wasn't suitable for permanent employment with Telus and, when Zerebeski was ready to return on Jan. 9, terminated his employment due to unsuitability. e arbitrator found that Zerebeski was given a fair opportunity to demonstrate his suitability for the job with Telus. e compa- ny provided an extensive training program that included "direction and guidance on the company's rules, policies, procedures, practices and expectations," with empha- sis on safe work practices, as well as practi- cal training and shadowing of experienced technicians. Zerebeski was familiar with the company's expectations and agreed he was ready when Telus allowed him to work on his own, the arbitrator said. e arbitrator also found that Zerebeski's initial admission to his manager was sup- ported by the witness' account, and his later version was self-serving and an attempt to distort the truth. e arbitrator found the service techni- cian position required someone who could work independently without supervision, and the fact Zerebeski's safety violations — the failure to tie himself in while working aloft and the speeding ticket — were both done while he was working on his own. is demonstrated during the probationary pe- riod that Zerebeski was unsuitable for this amount of responsibility, said the arbitrator. e union also claimed Zerebeski was disciplined twice for the same misconduct, pointing to the denial of his progression sal- ary increase as the first instance of discipline. However, the arbitrator found dismissal dur- ing the probationary period was not disci- plinary, but rather about suitability. In addition, the arbitrator determined Telus didn't unreasonably delay the termina- tion as it waiting until he recovered from his injury before dismissing him. e company also didn't discriminate against Zerebeski because of a disability, because the decision to terminate wasn't because of his injury — as evident by it waiting until he was able to work again — but rather because of unsuit- ability, as was its right during the probation- ary period. e only adverse impact Zerebe- ski experienced was the delay in the decision, during which he was receiving benefits. See Telus Corp. and TWU (USW, Local 1944) (Zerebeski), Re, 2016 CarswellAlta 178 (Alta. Arb.). Dismissal came after workers compensation benefits elapsed « from SAFETY on page 1 worker had a "gradual build-up of stress at work" due to the student's escalating behav- iour over three months — which wouldn't in itself qualify for benefits — but the worker's meltdown was triggered by the three events in the same week, which were sufficient to qualify as a traumatic event, said the tribu- nal. "e claim meets the requirement of an 'acute reaction,' because the evidence sug- gests that the worker would have been able to continue to manage to work with the oc- casional stress day, but for the increased vio- lent behaviour in January to April 2011 and the three incidents of early April 2011," said the tribunal. "e worker's (report of injury form) supports that her need for medical at- tention was triggered by the three events in early April 2011, which occurred in the con- text of escalating violence in the classroom from January to April 2011." Assaults were beyond what should be expected in job e tribunal acknowledged that the worker's job as an EA for special needs students "entailed dealing with difficult students with the potential for physical interactions." However, her job description and training emphasized assisting students with physical needs, such as catheter or tube feeding, not handling "regular, targeted physical assaults." ese targeted assaults constituted "physical harassment that culminated in three events that were precisely identifiable" and "properly characterized as objectively traumatic," said the tribunal. e tribunal found the following factors made the worker's situation "exceptional" and could not be reasonably expected in her position as an EA: • the student's targeting of the worker • the escalation of assaults into daily occur- rences in 2011 • the lack of advance warning of the assaults • the worker's inability to prepare for the as- saults when helping other students • being left alone with the student in a taxi- cab and assaulted repeatedly, which was not a regular part of an EA's responsibility. e tribunal overturned the ARO's deci- sion and granted the worker entitlement to workers compensation benefits for mental stress. For more information see: • Decision No. 177/16, 2016 CarswellOnt 1995 (Ont. Workplace Safety and Appeals Trib.). Several factors made worker's situation 'exceptional' « from EDUCATIONAL on page 3 Worker's meltdown was triggered by three events in the same week

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