Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2016 Canadian Employment Law Today | 7 Cases and Trends Employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog includes a tool for readers to offer their comments, so discussion is welcome and encouraged. The blog features topics such as employee personal leaves, definition of the workplace, fixed-term contracts, and workplace harassment. You can view the blog at www.employmentlawtoday.com. ABOUT THE AUTHOR RONALD S. MINKEN Ronald S. Minken is a senior lawyer and mediator at Minken Employment Lawyers, an employment law boutique, located in Markham, Ont. He can be reached at www.MinkenEmploymentLawyers.ca. Ron gratefully acknowledges Sara Kauder and Kyle Burgis for their assistance in preparation of this article. wording of the employer's bonus plan. e motions judge stated that there was no am- biguity in the terms of that plan, and that Paquette would not be "actively employed" during the reasonable notice period, and would therefore not qualify for a bonus. e problem in that analysis is that Pa- quette was not claiming damages for the bonuses themselves, but was claiming for common law wrongful dismissal damages — which included bonus payment — he would have received had the employer provided proper notice. e motion judge should have started his analysis from the premise that the dismissed employee has a common law right to damages based upon his complete compensation pack- age, and only then should he have turned to ascertain whether the compensation plan expressly limited that entitlement. In this case, the plan did not expressly limit Paquette's entitlement to a bonus payment because, had the employer provided prop- er notice, Paquette would have received a bonus payment. Lessons for employers A term of a contract or policy requiring ac- tive employment when the bonus is paid, without more, is not sufficient to restrict an employee's entitlement to compensation for bonus she would have received during the reasonable notice period. See Paquette v. TeraGo Networks Inc., 2016 CarswellOnt 12633 (Ont. C.A.). « from WRONGFUL DISMISSAL on page 1 Active employment can include notice period was no longer viable. And if the arbitrator felt reinstatement was justified, the employer said it should be conditional on random alcohol and drug tests; remaining clean from substances; completely abstaining from alcohol and drugs; in-patient treatment; weekly Alco- holics Anonymous counselling for two to three years; and a last chance agreement that provided for termination if any of the above conditions were violated. e arbitrators disagreed on all almost all points. Not disciplining a health-care worker who showed up late and intoxicated would be a "rare circumstance indeed," they wrote. But in finding her conduct non-culpable and undeserving of any discipline, that's exactly what the arbitration board did. It found ample evidence of an alcohol ad- diction and, even though Larrea wasn't in- volved with the employer's letters in 2007 to 2010, it said it was "inconceivable that she did not know (Storey) was addicted to alco- hol and had a disability." It found it ironic Larrea was aware of the previous incidents because the employer breached the sunset clause that should have expunged the pre-2011 events from its files. "e notes from the investigation meet- ings and the termination letter plainly reveal the influence of the aged records and disci- pline regarding intoxication, which had an alcohol problem at its core," it wrote. It chastised the employer for not deliv- ering the second discipline letter — which called for an unpaid suspension and for her to enter a treatment program. "What makes us shake our heads is that Ms. Larrea knew (Storey) was intoxicated (or, at least, under the influence of alcohol) on June 18, and (Storey's) denial was implau- sible. What more would a reasonable em- ployer need to trigger the accommodation set out in the letter that was not delivered?" e employer shouldn't have waited for an official time-off request. Broaching the subject with her employer was a "cry for help that fell on deaf ears." Had more empathy been shown, given the worker's history, the June 18 incident could have been avoided. It also took the employer to task for ac- commodating Storey in the past when she was a more junior employee, but turning immediately to termination for a similar of- fence when she had more seniority. It ordered Storey reinstated with full back pay, seniority and benefits. e only condi- tion attached was for her to attend an ac- credited treatment program "to the extent reasonably determined to be necessary from time to time." For more information see: • Prince Albert Parkland Health Region and CUPE, Local 4777 (Storey), Re, 2016 Car- swellSask 473 (Sask. Arb.). Disciplinary history limited by sunset clause « from INTOXICATED on page 3

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