Canadian Employment Law Today

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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 too harsh? OR Was dismissal appropriate? Worker disconnected after violating cellphone ban THIS INSTALMENT of You Make the Call features a personal support worker who ignored a ban on cellphone use on the job. Ana Teeple was a personal support worker for the City of Kingston, Ont., for 23 years. At the healthcare home where Teeple worked, staff were told that using personal cellphones while on work time was unac- ceptable and employees were to focus on pa- tient needs. A Jan. 22, 2014, email from the home's administrator reminded staff of this fact and noted that registered nurses were expected to monitor this and report anyone who violated the rule. e administrator sent another email in May 2014 to remind staff that employees should not carry personal cellphones while on duty without authorization. Up until December 2014, no employees had been disciplined for violating the cell- phone rule and some employees had been authorized to use their personal cellphones in case of family emergencies. ere were a few occasions where employees were spo- ken to about their cellphones and the em- ployees immediately put them away, includ- ing Teeple on one occasion. Teeple was suspended for one day in Au- gust 2014 for taking food without permission for a resident who didn't have that food in her prescribed diet. Two months later, Teeple did the same thing. She was suspended for fi ve days with a warning that any future incident would result in termination of employment. On Dec. 8, a registered practical nurse on duty as the team leader entered the din- ing room and saw Teeple feeding a resident lunch. While the resident was chewing, Teeple was holding her cellphone above the table and texting. e team leader told Teeple to put her phone away and Teeple replied that she had to let her daughter know she was working overtime. e team leader went around giv- ing medications to residents and when she left the dining room, she saw Teeple was still texting. is concerned her because when residents were fed it was one of the few times they could interact one-on-one with a per- son. In addition, she felt Teeple wasn't being attentive to the resident's risk of choking. Another staff member in the dining room reported seeing Teeple using her cellphone, but said it was in her lap. e home's assistant director of care met with Teeple the next day. Teeple explained she was texting her daughter about her overtime shift. She said she knew she wasn't supposed to use her cellphone but "so does everyone else." She also claimed she held the phone under the table so the resident couldn't see it and she put it away when the nurse said to. e assistant director asked her why she didn't excuse herself and Teeple didn't answer. e director of care felt that, given Teeple's two recent instances of discipline, this in- cident justifi ed Teeple's discharge. On Dec. 12, Teeple was dismissed for violating the personal cellphone rule, placing a resident at risk, and being insubordinate to her team leader when told to put the cellphone away. e union argued other employees used cellphones at the home and weren't formally disciplined. In fact, some employees re- ceived calls on their cellphones for overtime opportunities and nobody had been disci- plined for breaking the rule. IF YOU SAID dismissal was too harsh, you're correct. e arbitrator agreed that Teeple violated the rule on using cellphones at work and may have put the resident she was feeding at risk by not paying attention. However, the diff ering accounts of Teeple, the team leader, and the other staff member made it diffi cult to conclude whether Tee- ple texted for a long time or didn't put her phone away when asked to. e arbitrator found Teeple knew the home had a policy that cellphones were not to be used at work, but this rule wasn't un- forced. Many staff members carried phones and some received work-related calls on them. e fact that no one had been disci- plined for it was telling, said the arbitrator. "In my view, the employer's lack of notifi ca- tion by words or conduct that the use of a cell- phone while at work would attract discipline may have lulled (Teeple) into believing that a violation of the policy would not attract a dis- ciplinary response," said the arbitrator. e city was ordered to reinstate Teeple without loss of seniority but also without compensation for the seven months she missed following her discharge. e seven months would serve as a suspension on her record with "a clear message to (Teeple) that any further breaches of the cellphone use policy or any further instances of other conduct which attracts discipline will almost certainly be just cause for the termination of her employment." For more information see: • Kingston (City) and CUPE, Local 109 (Tee- ple), Re, 2015 CarswellOnt 11530 (Ont. Arb.).

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