Canadian Employment Law Today

April 12, 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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©2017 Thomson Reuters Canada Ltd. All rights reserved. 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: 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: Sales Manager: Paul Burton Email: Phone: (416) 649-9928 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 Did the employer have just cause for dismissal? OR Was termination not appropriate in these circumstances? IF YOU SAID termination was not appro- priate, you're correct. e court noted that "criminal charges alone, for matters outside of employment, cannot constitute just cause." As a result, Tigercat had to prove the charges had a "justifi able connection" to the company or the nature of the worker's employment. e court pointed out that the worker was one of several hundred general labourers at Tigercat and didn't have any managerial or senior role with the company. e charges weren't associated with his employment and Tigercat had no knowledge of the details. e court found it was unlikely there was any damage or potential damage to Tigercat's reputation, particularly since the worker was allowed to return to work after a short leave of absence. e only new information Tiger- cat had once the worker returned to work was the concern from the female employee, who wasn't involved in the case, though the vice-president may have misunderstood and thought she was. Such a complaint didn't warrant dismissal, but could have easily been accommodated through other means at a large plant, said the court. "( e vice-president) mistakenly refers to this employee as being involved in the crimi- nal case. e employee's handwritten note says otherwise," the court said. "Assuming this employee's representation was correct, Tigercat had a duty to accommodate her and (the worker). Dismissal was not the answer." e court found the worker was under no obligation to disclose the criminal allega- tions against him, as the investigation was ongoing. ere was also no evidence to in- dicate he lied when he said the charges didn't involve anyone at Tigercat, so dishonesty wasn't a reason for dismissal, said the court. e court also found Merritt's disciplinary record was relatively minor and the two inci- dents warranting discipline had been clearly resolved. e court determined Tigercat didn't have just cause for dismissal. Because the worker wasn't employed with Tigercat for almost two years after his December 2000 layoff , the court considered September 2002 as his ser- vice date. Considering the worker's low-level job but advanced age, the court ordered Tiger- cat to pay the worker 10 months' pay in lieu of notice. See Merritt v. Tigercat Industries Inc., 2016 CarswellOnt 2508 (Ont. S.C.J.). Off -duty allegations bleed into work THIS INTALMENT of You Make the Call features a worker who was dismissed after he was criminally charged for off -duty conduct. e 67-year-old worker was a labourer for Tigercat Industries, a designer and manufac- turer of forestry equipment based in Brant- ford, Ont. e worker worked at Tigercat's production facility in Paris, Ont., perform- ing his labourer duties as well as sometimes working as a truck driver and material han- dler. He was hired in 1998, laid off on Dec. 8, 2000, and rehired on Sept. 30, 2002. He was laid off again on Jan. 23, 2009, for shortage of work and was recalled on Aug. 17 of that year. e worker had four incidents of miscon- duct during his tenure with Tigercat. e fi rst was in November 2011, when Tigercat accused him of lying when he called in sick for two days while his daughter was having a baby. An email was put in his fi le but no for- mal discipline was issued. e second was in January 2013 when the worker moved a load off a trailer that wasn't properly secured, so it rolled off . e worker was given a warning that he refused to acknowledge because he denied being told how to secure it. e third incident was in August 2013 when the worker was suspended for one day for another load rolling off a trailer. Ti- gercat replaced him as a driver but agreed to have him continue in a diff erent role. en, in October 2014, the worker received an- other one-day suspension after backing into another vehicle during a mail run. He was taken off the mail run permanently. On Feb. 5, 2015, the worker was arrested by police at work and was charged with two counts of sexual assault against minors stemming from off -duty events. Tigercat's vice-president of operations met with him the next day and the worker didn't provide any details on the charges, other than that they didn't involve any Tigercat employees. e vice-president presented the worker with a letter of resignation, but the worker refused to sign it. It was decided the worker would take a two-week leave of absence, but Tigercat issued a record of employment that indicated a layoff from shortage of work. e worker returned to work on Feb. 23 and he was assigned to the Cambridge, Ont., plant to fi ll a vacancy there. He worked sev- eral hours of his shift until a female employee at the plant told the vice-president that she had previously worked on the worker's farm when she was a minor and the worker had made sexual advances towards her. e vice- president claimed the female employee said she was involved in the criminal case against the worker, though a handwritten note she provided did not state this. e vice-president met with the worker later that day and raised the issue of the fe- male employee. e worker again said no employees were involved in the criminal charges. However, the worker's employ- ment was terminated for cause based on his conduct, his failure to tell the "whole truth," his disciplinary history, and "the impact his criminal charges had on Tigercat Industries in general and on his fellow employees."

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