Canadian Employment Law Today

March 29, 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 the employer entitled to dismiss the employee? OR Was the employee wrongfully dismissed? IF YOU SAID Garreton was wrongfully dis- missed, you're right. e trial judge found Garreton was dismissed without cause and awarded her fi ve months' notice. CI ap- pealed on the basis that the trial judge erred in not considering the employment agree- ment in determining whether the dismissal was wrongful, but the appeal court upheld the decision. e appeal court agreed the trial judge erred by not considering whether the em- ployment agreement's termination provi- sion should have been in eff ect, which would have limited Garreton's notice to two weeks' pay plus benefi ts. However, the appeal court noted that while the termination provision was consistent with the law for Garreton as an employee of less than three years, had she lasted more than three years the provision would have been in breach of employment standards legislation. Employers and em- ployees cannot contract out of employment standards minimums, so this made the ter- mination provision void and unenforceable, said the appeal court. However, while the trial court failed to properly consider the termination provi- sion, it didn't aff ect the ultimate decision. e court found that Garreton's miscon- duct wasn't serious enough to be considered workplace violence and her two previous incidents weren't serious either, nor were they recent. And most importantly, Garre- ton was already disciplined for the bagel in- cident with her two-day suspension that was referred to as formal disciplinary action. By dismissing her for the same incident when she returned from her suspension, CI put Garreton in "double jeopardy" — disciplin- ing her twice for the same off ence. is made the termination wrongful. e appeal court upheld the trial court's decision that Garreton was wrongfully dis- missed and deserved fi ve months' notice, since the termination provision and its limit of two weeks' notice was void and unen- forceable. For more information see: • Garreton v. Complete Innovations Inc., 2016 CarswellOnt 2500 (Ont. Div. Ct.). e case of the bagel incident THIS INSTALMENT of You Make the Call features an employee who was fi red after an incident with a co-worker and a bagel. Marcela Garreton, 47, started employ- ment with Complete Innovations (CI), a provider of mobile tracking software for the Canadian and U.S. markets based in Markham, Ont., in late 2009 on a six-month contract. At the end of the contract, CI hired her on a full-time basis as a trainer. Garreton's new employment contract included a provision that allowed her to be terminated immediately without notice for a failure to discharge duties and "for cause un- der common law or statute law or for breach of the terms of the agreement." In addition, the provision allowed the contract to be ter- minated without cause with one week's no- tice if Garreton had been with the company between three months and one year, two weeks' notice for employment between one and three years, and one additional week for each additional year up to eight weeks after that. It also stated that "Complete Innova- tions shall maintain on your behalf your em- ployee benefi ts for a period of not less than the period require by applicable statute." On June 7, 2012, Garreton purchased ba- gels for an internal training session she was leading. Another employee who wasn't part of the training session asked her supervisor if she could take a bagel, to which the su- pervisor agreed. When the employee came to take a bagel, Garreton asked her to wait until the attendees had gotten their food. However, the employee grabbed a bagel and Garreton grabbed the employee's wrist. e employee spoke a profanity at her and left with the bagel. e employee reported the incident to the CEO, who interviewed Garreton and suspended her with pay for two days for re- taliating with physical violence and failing "to adhere to the policies and procedures of your job." Garreton was given a letter of sus- pension that stated it was "formal disciplin- ary action." When Garreton returned to work after serving the two-day suspension, she was given a letter of termination that referred to the bagel incident as well as two incidents more than one year earlier for which she had received warning letters — one involving in- subordination to a superior and another for a client complaint about her attitude. Garreton sued for wrongful dismissal. The employee was suspended for two days with pay following altercation with colleague

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