Canadian Employment Law Today

March 1, 2017

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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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: customersupport. Website: Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Media Solutions, Canada: Karen Lorimer Publisher/Editor in Chief: Todd Humber Editor: Jeffrey R. Smith E-mail: ©2017 Thomson Reuters Canada Ltd. All rights reserved. Emplo y ment Law Today Canad ad a ian 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 termination unwarranted? OR Was there just cause for termination? IF YOU SAID termination was unwar- ranted, you're right. e adjudicator found that the fi nal incident involving the mailbox did not warrant discipline as it wasn't clear enough that the worker was the one respon- sible — it could have been one of several company trucks in the surveillance video and the worker said it wasn't at the time he left the yard. In addition, the worker wasn't disciplined for the fi rst two incidents, so the employer essentially condoned them and couldn't rely on them later as part of the case for dismissal — though they could have led to discipline under the driving clearance policy had the employer opted to take that route. As a result, only the January 2015 car accident was part of the worker's disciplin- ary history. e worker was disciplined for the at- fault car accident, receiving a two-day sus- pension. However, since it was the fi rst inci- dent for which the worker was disciplined, he should have been given a warning under the employer's progressive discipline policy, not a suspension. Either way, by the time of the Febru- ary mailbox incident, the worker only had one instance of misconduct on his record. Rather than giving a warning or suspension, the employer didn't follow its own policy by moving to the fi nal step of its progressive discipline policy — termination of employ- ment. " e (worker) submitted that he should have been given the opportunity to cor- rect his behaviour," the adjudicator said. "I agree with that submission, noting that this is precisely the intent of a progressive dis- cipline system, such as that adopted by the (employer). e intent is to provide an op- portunity for employees to learn from their mistakes and to provide them with an op- portunity to correct their conduct." e adjudicator determined the worker's dismissal was unjust because of the em- ployer's failure to follow its progressive dis- cipline policy and "imposed a penalty for a relatively minor incident, which was the harshest one available." For more information see: • Atlantic Transportation Inc. and Urqu- hart, Re, 2016 CarswellNat 215 (Can. Lab. Code Adj.). Truck driver spins out after mishaps THIS INSTALMENT of You Make the Call involves a truck driver who was fi red following four accidents. e worker was hired as a commercial tractor trailer driver in August 2014 by At- lantic Transportation. Atlantic had a policy on driving clearances that stated "all persons must be aware of the maximum height and width of any vehicle they may operate," as well as ground clearance, and were prohib- ited from operating a vehicle where the min- imum clearance of the vehicle could come into contact with any object. e policy al- lowed for a four-step discipline process in the event of its violation, from verbal warn- ing to dismissal. Another Atlantic policy covered post-ac- cident procedures and required "all persons involved in any accident/incident …shall make themselves available for a meeting with an agent of this company's insurance company, if requested to do so." Discipline for violation of this policy involved just two steps — a written warning with suspension and dismissal. On Aug. 19, 2014 — eight days after he started work — the worker backed up his trailer onto the onsite scales after unload- ing. His driver-side mirror hit a bollard at the scale entrance and broke. He was given a replacement mirror from a mechanic friend and he reported the incident to the safety di- rector when he returned to the yard. ough he didn't report the incident immediately, he was told there would be no discipline. ree days later, on Aug. 22, the worker damaged a trailer parked by a back door when doing a diffi cult blind-side turn. e truck it- self wasn't damaged and he didn't think there was much damage to the trailer. e worker wasn't disciplined for the incident. e worker was involved in a third inci- dent on Jan. 8, 2015, when he was driving a company truck on an expressway. He moved the truck into the passing lane and traffi c stopped suddenly in front of him. He hit the brakes hard, causing the truck to fi shtail, slide, and hit the median. Police were called and an offi cial accident report was fi led. He was suspended for two days for the "at fault" accident. One month later, on Feb. 9, the worker was leaving the company yard when he hit a mailbox with his truck. e mailbox fell off and hit a co-worker's car. e worker claimed he didn't realize what happened and didn't fi nd out about it until he returned to the yard. When he saw a surveillance video of the incident, he wasn't convinced it was from the time he left the yard and therefore questioned whether it was actually he who did it. e worker was initially told he was re- ceiving a three-day suspension, but when he returned to work after serving it, the safety director informed him his employment was terminated.

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