Canadian Employment Law Today

Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2016 Cases and Trends Canadian Employment Law Today | 7 Cases and Trends to where Saliken was and asked him what he was doing. e client representative asked Saliken where his maintenance manuals were and Saliken replied that they were on the computer — daily updates were usually issued to manuals so it was easier to use on- line ones than print manuals. e client representative asked to see a specific tool noted on the page displayed on the computer screen — which didn't happen to pertain to the what Saliken was doing at the time — and Saliken explained the tool wasn't needed for that work. e representative continued to ask where the tool was and Saliken became frustrated. He pointed to a tool wall where the calibrated tools were kept and said the tool was there "somewhere." ey weren't labelled, so Sa- liken couldn't point out the specific tool. e other mechanic walked over and offered to show the representative where the tool was. ey returned to Saliken's work bench after finding the tool and the representative asked Saliken what was in two unlabelled bottles. He stated that they should be labelled, so Sa- liken tossed the bottles — one with oil and the other Windex — into the garbage. e representative then questioned Sa- liken about an uncalibrated depth gauge on his work bench. Saliken explained that he had just bought it and was using it for a reference to compare with the company's depth gauge. He knew all final measurements had to be made with a properly calibrated depth gauge, but the representative seemed upset he was using a non-calibrated gauge at all. Saliken re- sponded by saying "I guess this is garbage too" and tossed the gauge in the garbage. Saliken and the other mechanic later described the atmosphere in the shop as "tense" but thought overall the audit went well. Saliken admitted he didn't act appro- priately, but didn't think he had become up- set. e other mechanic felt Saliken became annoyed by the representative's questions but it was understandable because manage- ment had told them they wouldn't be dealing with the client representative. After the audit, the client representative mentioned Saliken's use of the non-calibrat- ed gauge but was generally satisfied with things. He said he was surprised Saliken threw the gauge and bottles in the garbage, but he didn't seem overly concerned. Employer worried about harm to customer relationship e shop manager, however, was upset with Saliken's behaviour because it might have created a negative perception of the company with a potential major client. When the president of Alpine Aerotech heard of the incident, he apologized by email to the representative and assured him he would address it immediately. He then in- formed the head of HR that he wanted Sa- liken terminated for cause that day. Shortly thereafter, the client representa- tive responded to say he was fine with Salik- en's actions as he understood not everyone enjoys being audited. He also said "As long as you can ensure that he will perform the work per the manual, he can throw all of his belongings that he wants in my opinion." e next day, April 9, the shop manager passed along comments from Saliken that he wouldn't be working on any "effing Erickson aircraft." e president was even more con- cerned about Saliken hurting the company's business with the new client, so he made it clear he wanted Saliken gone. e head of HR prepared the termination documents and passed them to the company accountant, who handled HR issues in the Abbotsford facility. at afternoon, the shop manager informed Saliken he was being ter- minated and brought him to his office, where he met with the company accountant. e manager told Saliken he needed to read and sign the paperwork before he went home, though the termination letter stated 3 p.m. the next day. e termination letter stated Saliken was being fired for inappropriate actions towards the client representative. Because he was be- ing terminated for cause, no notice or pay in lieu of was being provided. However, the company offered to waive his training bond, which it claimed was worth $8,787. e letter also indicated he must sign a liability waiver in order to have the training bond forgiven. Saliken read the documents but claimed he didn't understand them. No one explained them to him and, though he disagreed with his termination, he signed them. He later sued for wrongful dismissal damages, seek- ing six months' salary in lieu of notice. e court found that while Saliken over- reacted during the confrontation with the client representative, it wasn't just cause for dismissal. Saliken should have acted more profes- sionally, but the company didn't prepare him for the encounter with the client repre- sentative, leading to extra pressure on him and frustration. In addition, the decision to terminate seemed to have come from the re- action and embarrassment of the shop man- ager and his resulting account of the incident to the president, not from any real harm to the company. In fact, the client representa- tive shrugged off the incident and seemed to think it was understandable under the circumstances, said the court. Overall, the audit went well. e court found Saliken's behaviour war- ranted discipline, but since he had a clean disciplinary record and the misconduct was relatively mild, dismissal was too harsh. e court also found Saliken was put in an unfair situation at the termination meeting and was under duress when he signed the waiver; nor was he given an opportunity to seek legal advice. In addition, the documents were misleading in implying he would be required to pay the full training bond if he didn't sign the waiver. While it was made to seem forgiveness of the training bond was consideration for signing the release, in real- ity there was no consideration because there was no cause for dismissal, said the court. e court agreed that Saliken was entitled to six months' pay in lieu of notice minus part-time earnings Saliken made during that time period. Alpine Aerotech was ordered to pay Saliken $28,985 in damages plus interest. For more information see: • Saliken v. Alpine Aerotech Limited Partner- ship, 2016 CarswellBC 1312 (B.C. S.C.). Manager and owner were embarrassed after audit « from HELICOPTER on page 3 WEBINARS Interested in learning more about employment law issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as compliance under the temporary foreign worker program, managing hidden disabilities, harassment investigations, and HR and payroll implications of employee terminations. To view the webinar catalogue, visit cpdcentre.ca/hrreporter.

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