Canadian Employment Law Today

May 11, 2016

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 May 11, 2016 'Workplace' defi nition confi rmed for health and safety purposes Federal Court confi rms decision tying obligation to conduct safety inspection to employer's control over location BY JEFFREY R. SMITH THE FEDERAL Court has confi rmed that the defi nition of "workplace" for the purposes of health and safety inspections does not include areas where employees perform their jobs that are outside the employer's control. In July 2012, representatives for the Canadi- an Union of Postal Workers' local joint health and safety committees (LJHSC) in Burlington, Ont., proposed that inspections of the routes of individual letter carriers be included as part of Canada Post's workplace hazard prevention program for the Burlington Depot. e LJHSC argued that while letter carriers were delivering mail, public areas in which they ventured were part of the workplace. Canada Post declined to include public areas as part of the workplace for the purposes of the hazard prevention program, but advised that delivery agents could report hazards on delivery routes to their supervisors. Falsifying timesheets and not admitting it gets poor reception A FEDERALLY regulated employer had just cause to dismiss a worker who falsifi ed timesheets and refused to accept responsi- bility for it, an adjudicator has ruled. Bruce Sinclair was a maintenance techni- cian with Shaw Cablesystems in Edmonton since 2006. Sinclair had mixed results with his performance, as some reports indicated he was polite with customers and others that he was sometimes rude. In addition, Shaw's random checks of employee jobs — about one per cent of all work performed by technicians — showed Sinclair often did poor work. In November 2012, Sinclair's supervisor met with him to review unacceptable use of work codes, not fi lling out paperwork prop- erly, and not fi nishing the job on his calls. In 2013, Shaw had to assign two follow-up vis- its by other technicians to fi x Sinclair's work. He was also given "below expectations" rat- ings on other jobs. Shaw inspectors found more problems with poor work, giving cus- tomers incorrect information, and failing to call a customer before he arrived. On May 1, 2013, a supervisor told Sinclair that he was "paving his own road out the door" due to issues with his performance, ability and customer relations. Sinclair was given a written reprimand referring to seven out of 13 job scores that were "below expectations" — the average technician re- ceived such a grade on about 10 per cent of job scores. e reprimand letter referred to customer complaints about him and some customers did not want him back into their homes. In November 2013, there were still con- cerns about Sinclair's performance six months after his written reprimand. Sinclair refused to take responsibility and his super- visor told him "your performance is putting your job at risk." In 2015, Sinclair was injured and Shaw gave him modifi ed work on the quality control team that involved driving around for a 10- Future imperfect pg. 3 Decision fi nds termination clauses aren't enforceable if they could violate employment standards later with Colin Gibson CREDIT: VALESTOCK/SHUTTERSTOCK Taking the 'high' road pg. 4 Alberta Court of Appeal clarifi es enforcement of workplace drug and alcohol policies ASK AN EXPERT pg. 2 Disciplining employees for similar misconduct EMPLOYEE on page 7 » CONTROL on page 6 »

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