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 uncalled for? OR Was dismissal justifi ed? IF YOU SAID dismissal was uncalled for, you're correct. e arbitrator found that the way Purolator treated past instances of employees throwing freight as well as its actions in this case demonstrated that the company viewed such misconduct at "rela- tively minor." e arbitrator noted that the company's investigation into the matter consisted of a single interview of each employee identi- fi ed and it was via conference call, not even in person. In addition, it was initiated by the manager of the air division in Ontario who initiated the process, not the unit managers in Prince George. ere was nothing indi- cating the unit managers had any meaning- ful input into the decision to terminate, said the arbitrator. Purolator's history addressing similar in- stances of misconduct was also telling. ere were other examples of employees failing to use the belt-loader, but this resulted in sus- pension, not dismissal. e worker himself had a one-day suspension on his record, but jumping to dismissal after that would require serious misconduct, especially since the pre- vious discipline wasn't related to throwing packages, said the arbitrator. e arbitrator found the three employees in this instance were singled out because they were recorded on video that was broad- cast. Even then, two were reinstated with a settlement. In addition, the worker acknowl- edged his misconduct, even if it wasn't a full- blown apology. Given the relatively minor nature of the misconduct and the lack of any similar misconduct on the worker's record, the employment relationship wasn't irrepa- rably damaged, said the arbitrator. Purolator was ordered to reinstate the worker with a three-day suspension on his record — "consistent with the principles of progressive discipline" — and compensation for lost wages and benefi ts. e arbitrator denied the union's claim for additional dam- ages for the manner of dismissal, fi nding no bad faith on the part of the company. For more information see: • Purolator Inc. and TC, Local 31 (Smith), Re, 2015 CarswellNat 5537 (Can. Arb.). Worker thrown out for throwing packages THIS INSTALMENT of You Make the Call involves an employee who was caught on video violating company policy. e 50-year-old worker was a depot sorter for Purolator in Prince George, B.C. His job involved securing aircraft that fl ew into the Prince George facility and unloading freight into vans with a hydraulic belt-loader. Puro- lator's approved unloading process required using the belt-loader and other methods were discouraged. If the belt-loader had mechanical issues, a substitute belt-loader was available for rental from an airline that used the facility. If the substitute belt-loader wasn't available, the freight was to be re- turned on the aircraft — though there was no evidence this had ever happened. e worker received a one-day suspension in December 2014 for failing to put away the belt-loader when it wasn't in use. In November 2014, the unit manager re- minded employees that they worked in a "fi shbowl" and their actions could be seen by anyone nearby with a cellphone. He also told them they must never unload freight without using a belt-loader. In addition, the employee handbook stated that "customer shipments must not be thrown or mishan- dled in any way." On March 15, 2015, a news program aired a video from the Prince George facility re- corded on a cellphone. e video depicted a Purolator employee tossing packages to the worker who then tossed them into a van. e hydraulic belt-loader could be seen off to one side and two other employees were present. e manager of Purolator's air division saw the broadcast in Ontario and called the worker's manager about the violation of company protocol. ree of the four em- ployees in the video were identifi ed and in- terviewed separately via conference call. In his interview, the worker acknowledged he shouldn't have been unloading without a belt-loader and admitted he would be "PO'd" if someone handled his goods that way. On March 18, all three employees were dismissed, including the worker. e work- er's letter of termination stated that he was identifi ed in a video from a television broad- cast mishandling freight and he was unable to provide an explanation for his actions. His "blatant disregard for the safekeeping of cus- tomer freight" diminished Purolator's brand and reputation and warranted immediate dismissal, the letter concluded. A few weeks later, two of the employees were reinstated after reaching settlement agreements. e union fi led a grievance on behalf of the worker, pointing to a March 2014 incident where an employee who had intentionally thrown packages from a table towards mail slots and into a cage on the fl oor was suspended for fi ve days rather than fi red. It also argued that Purolator was le- nient with regards to the use of a belt-loader in certain circumstances when it had me- chanical problems, so it wasn't treated as a "blanket rule."

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