Canadian Employment Law Today

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 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 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. 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 YOU MAKE THE CALL Was dismissal excessive? OR Was there just cause for dismissal? Workers caught playing hide and seek THIS INSTALMENT of You Make the Call features a group of employees who went where they're not supposed to go. Tolko Industries operated a sawmill and planer mill in Merritt, B.C. It also ran a ve- neer mill adjacent to the other mills for a time, but closed it. e veneer mill building was used for storage after it was closed, but most of the building went unused except for a small lunchroom and washroom. Glenn McNeely and Jacob Collins began working for Tolko in March 2012 and Bren- dan Colter in January 2014. ey were all hired as part of the graveyard-shift cleanup crew, which removed dust and debris from the sawmill machinery and plant while it was shut down overnight. Tolko employees were allowed three paid breaks during their shifts. For the graveyard shift, the allotted breaks were at 1 to 1:10 a.m. and 5:30 to 5:40 a.m. with the lunch break at 3:15 a.m. Breaks could be taken in one of three lunchrooms — one each in the sawmill, planer mill, and the old veneer mill. Tolko experienced problems with em- ployees on the graveyard shift taking ex- tended breaks. is was a safety concern be- cause they had to ensure all the sawdust and debris was cleaned up before the machinery was up and running at 6 a.m. Recently, there had been explosions at other mills caused by a buildup of sawdust. McNeely, Collins and Colter were all counselled on overextending their breaks, though they weren't disciplined. e saw- mill superintendent reminded employees at a safety meeting on Feb. 10, 2015, that ex- tended breaks were not acceptable. e three workers liked to take their breaks together away from the rest of the crew and often went to the lunchroom in the old veneer mill. One day in March 2015, they found the old lunchroom at the top of some stairs in the veneer mill building and a small, windowless room at the far end. ey decided to take their breaks there and found a table and chairs for the room. e graveyard shift supervisor heard from the night watchman that some employees were in a restricted area in the veneer build- ing. e supervisor went through the build- ing, including the old lunchroom, where he saw the door to the small room behind it. e next day, he advised the crew that they were not allowed in the restricted areas of the veneer building. On March 25, the supervisor looked for the three men after a coff ee break but couldn't fi nd them. He suspected they had gone to the old lunchroom so he went with another supervisor to check it out. ere was nobody in the lunchroom, but the su- pervisor noticed the deadbolt on the door to the little room was engaged. He knocked on the door but there was no response. e two supervisors listened for noises, but left about 10 minutes later. By this time it was 6 a.m., 20 minutes after the end of the second coff ee break. McNeely, Collins and Colter were in the little room staying quiet. When the supervi- sors left, they opened a window in the old lunchroom and went onto the roof of the ve- neer building. Collins lowered himself onto a shed, jumped down, and ran to the sawmill. e graveyard shift supervisor went back to the sawmill to ask around, and when he returned to the veneer mill the other super- visor said he had heard a noise and saw an arm go past transparent roof sheeting above. ey heard another noise, went outside, and saw McNeely and Colter running down the stairs of the old lunchroom to the washroom. e supervisor rounded them up and told them they were suspended indefi nitely pending investigation. e next day they denied being in the little room behind the locked door or going on the roof. ey also didn't acknowledge they had extended their coff ee break time or apologize. Tolko terminated their employment eff ec- tive March 30 for abandoning their assigned work areas, taking extended breaks, and ly- ing about it afterward. e workers grieved their dismissal, arguing they didn't come clean initially because their union repre- sentative told them they shouldn't admit to anything. ey also said they realized their behaviour was wrong and fi nally apologized. IF YOU SAID dismissal was excessive, you're right. e arbitrator found the three employees took an unauthorized, extend- ed break on March 25 and they eff ectively abandoned their jobs. ey also tried to avoid detection when they were almost caught. ese were forms of dishonesty, which was exacerbated by lying during the investigation, said the arbitrator. e arbitrator also found their miscon- duct raised safety concerns, as they were in a restricted area with no one knowing where they were. In addition, abandoning their jobs left some of the cleaning work to be done after the machinery started work- ing again. However, the arbitrator noted Tolko had never previously disciplined any of the workers for past misconduct. Since work- place discipline should be progressive and corrective, dismissal as a fi rst step wasn't ap- propriate in this case. Tolko was ordered to reinstate the em- ployees with no compensation, with the four months since their dismissal serving as a sus- pension. For more information see: •Tolko Industries Ltd. and USW, Local 1-417, Re, 2015 CarswellBC 2337 (B.C. Arb.).

• Cover