Canadian Employment Law Today

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 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 Acting Publisher/Editor in Chief: Todd Humber Editor: Jeffrey R. Smith E-mail: Jeffrey.R.Smith@thomsonreuters.com ©2016 Thomson Reuters Canada Ltd. All rights reserved. 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 Worker questions motives behind layoff THIS INSTALMENT of You Make the Call involves a worker who questioned her employer's motives behind her layoff . Northstar Frontier Services operates camps in remote areas that provide services to railway workers and is based in Sudbury, Ont. It hired Elaine Finlay to be a cook and camp manager in February 2011 on a sea- sonal relief basis, fi lling in at diff erent camps until April 2012. In 2013, Northstar hired Finlay to be a reg- ular cook at a camp called Elsas. e rotation at camps such as Elsas stretched over a six- week period, with two cooks for each camp working three weeks on and three weeks off . Northstar paid the cost of transporting cooks to the camps, which for Finlay meant travel- ling from her home in Walkerton, Ont., 400 km to Sudbury and then to the Elsas camp. Because Finlay didn't want to leave her car at the departure point for the train to Elsas, she left it in Sudbury and a Northstar employee picked her up and drove her from Sudbury to the departure point — another 300 km. Northstar operated another camp called Auden whose two cooks worked a diff erent, seven-week schedule — one cook worked fi ve weeks and took two weeks off , with the second cook working two weeks and fi lling in when required during the other fi ve weeks. is meant there was sometimes schedul- ing diffi culties between the Elsas and Auden camps. One day while working at the Elsas camp, a CN employee hit Finlay with a snowball, breaking her glasses and giving her a head- ache. She complained but the CN employee wasn't disciplined. Later, someone com- plained about fi nding a hair in the food and Finlay suspected it was the same CN employ- ee trying to make things diffi cult for her. Fin- lay alleged this employee was harassing her, but nothing came of it. Two train derailments in February and March 2015 made things worse for North- star's scheduling. e two camps were only accessible by rail and Northstar had to com- ply with an excess hours permit from the federal government that placed limits on how many extra hours the cooks could work. Northstar decided that modifying the cook schedule at Elsas to match the seven-week rotation at Auden would help ease some of the transportation diffi culties for the cooks of the two camps. e new schedule involved one cook working fi ve weeks in each camp, with a third cook working two weeks in each camp. As a result, only three regular cooks were needed between the two camps. e two cooks at Auden were kept on, keeping their schedules, and one cook was kept on at Elsa. e second Auden cook who only worked two weeks out of the schedule was given two weeks at Elsa, leaving Finlay as the odd cook out. She was laid off for discontinuance of function, as permitted under the Canada Labour Code. On her last day of work, the CN employee who Finlay had accused of harassment of- fered her a ride back on a high-rail vehicle. After he dropped her off , Finlay heard that he told people he had set up her termination. Finlay fi led an unjust dismissal complaint, arguing there was no discontinuance of her function that allowed Northstar to lay her off . She said her duties were being done by someone else and her dismissal was in fact a reprisal for her allegations of harassment. YOU MAKE THE CALL Was Finlay unjustly dismissed? OR Did Northstar have the right to lay her off? IF YOU SAID Northstar had the right to lay Findlay off , you're right. e adjudica- tor referred to the Supreme Court of Can- ada's 1993 discussion of discontinuance of a function, which "will occur when that set of activities which form an offi ce is no lon- ger carried out as a result of a decision of an employer acting in good faith." e adjudicator found Northstar's deci- sion to reorganize its work schedules was for legitimate economic purposes, as it would "generate savings and effi ciencies in its oper- ations," including not only having one cook's salary off the books, but also the signifi cant cost of transportation to the camps. e rea- sons of business effi ciency and cost reduc- tion were legitimate business considerations that justifi ed the revamping of the schedules that resulted in the company only needing three cooks instead of four between the two camps, said the adjudicator. e adjudicator also found there was no evidence Finlay's harassment allegation had anything to do with the decision to lay her off , and the CN employee's statements that he was involved came after the layoff deci- sion and didn't seem credible. "Anyone can make a statement claiming credit for an event after the event has oc- curred," said the adjudicator. " At best, the statements made by the CN employee — if he made them at all — may best be qualifi ed as self-serving or self-aggrandizing." e adjudicator found that Finlay's claims of reprisal and ulterior motives were "un- founded suspicions." Northstar's reorga- nization of the work schedule was for le- gitimate business reasons and there was a discontinuance of function that permitted Northstar to dismiss Finlay under the code. For more information see: •Finlay and Northstar Frontier Services Inc., Re, 2016 CarswellNat 516 (Can. Lab. Code Adj.).

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