Canadian Employment Law Today

May 24, 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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Page 10 of 11

Canadian HR Reporter, a Thomson Reuters business 2017 "only human." Some time passed without event until June 13, 2013, when Dominato`s truck was hit by a car while backing out of an alley into the street. e police gave him a ticket for failing to yield to traffic — which Dominato told WDS he would dispute — and damage to the truck was estimated at $1,000. Less than one month later, on July 6, Dominato was completing a job at a customer's location when he hit the wrong button, opening the truck's tailgate and dumping garbage onto the customer's parking lot. He tried clean- ing up as much as possible, but it required power washing of the lot, which cost WDS $400. Dominato acknowledged he pushed wrong button and acknowledged fault for the incident. WDS issued a report about both incidents, telling Dominato it was his responsibility to be "in complete care and control of the vehi- cle at all times. Both incidents were deemed preventable and WDS warned him that any more similar incidents would be subject to discipline up to and including dismissal. e month following the garbage-dump- ing incident — Aug. 24 — Dominato was in- volved in an accident while driving his truck. He was stopped at a traffic signal waiting to turn left on a four-lane road. When the light turned green, he moved into the intersection to turn, but a car coming the other way ran the red light. Dominato swerved to the left to avoid the car, causing him to drive up onto the median and knock down the traffic signal pole. e damage to the truck was $850 and more than $13,000 for the traffic signal pole, which the municipality invoiced to WDS. Dominato signed the acknowledgement of the incident report but denied responsibil- ity for the accident, saying it was better to hit the traffic pole than the other car. ere was no formal warning or other discipline. On Nov. 11, 2013, Dominato was driving his truck down an alley when the door on the tool box opened and caught on a guard rail. Dominato had to keep driving to get free, resulting in $150 damage to the tool box. WDS gave him a written warning that he didn't judge the area correctly, causing dam- age, and that further incidents would lead to disciplinary action up to and including dismissal. Dominato denied responsibility, saying he checked the tool box at the start of his shift. It wasn't long until Dominato was in- volved in four more incidents, all in January 2014. e first involved him using a bag of garbage to prop gates open while emptying a bin and then leaving the bag behind and the gates open. Dominato said it was necessary to prop the gate open to access the refuse bin but acknowledged he forgot to remove the bag. e second incident involved Dominato leaving a bin too close to another recycling one that prevented the lids from closing properly. A second truck was dispatched to move them, adding a cost to WDS. Domi- nato acknowledged that it was possible he placed his bin too close, but it was also pos- sible the driver of another truck that had emptied the other bin had placed that one too close to his. Also that month, Dominato by-passed an assignment, claiming snow hadn't been cleared away from the bin, but the customer reported the snow had been cleared previ- ously; and a customer complained that he had placed their bin down in contact with a grease bin belonging to a different company, resulting in a complaint and a $500 repair fine. Dominato denied causing damage to the grease bin. WDS suspended Dominato for two days without pay following the four January 2014 incidents. On Feb. 18, Dominato reported to his su- pervisor that his truck was caught on wires and required assistance. He said the truck was higher than normal due to the large amount of snow on the ground and the wires were lower because of snow on them. WDS had the wires disengaged from the truck at a cost of $1,900 and the damage was $500. He was told his performance would be moni- tored and similar incidents would lead to "immediate suspension and/or termination." On Sept. 11, Dominato's truck damaged a refuse bin and building staircase near the bin. When the building manager called, WDS investigated and recorded the dam- age. Dominato denied it was his truck but his route sheet showed he was in the area at the time of the incident. WDS determined Dominato caused the damage and terminat- ed his employment on Sept. 17. Dominato filed an unjust dismissal complaint. e adjudicator found that there wasn't sufficient evident to link him to the damaged grease bin in January 2014 or the damaged staircase in September 2014 — meaning the latter couldn't be used as a culminating in- cident. is left Dominato's disciplinary re- cord with two-day suspensions in May 2011 and January 2014, and eight other written warnings between November 2011 and Feb- ruary 2014. While this constituted a large number of incidents, the fact was that WDS didn't follow its own progressive discipline policy, said the adjudicator. Even if the staircase damage was Domi- nato's fault, his last discipline — for getting his truck caught on overhead wires — was a written warning. Progressive discipline meant a suspension for the September 2014 incident, not dismissal. "After a series of written warnings, Mr. Dominato was issued a two-day suspension for the incident of Jan. 20, 2014. Had WDS been applying progressive discipline, Mr. Dominato should have been assessed a sus- pension of three to five days for the incident of Feb. 18, 2014," the adjudicator said. "By regressing to a written warning, a pattern it also followed in 2011 subsequent to a two- day suspension, it is not surprising that Mr. Dominato did not expect his employment to be in jeopardy and perceived that WDS was merely going through the formality of creat- ing paperwork." Dominato did not seek reinstatement, so WDS was ordered to pay compensation and benefits for 12 months beginning on the day he was suspended. See Dominato and Wind- sor Disposal Services Ltd., Re, 2017 Carswell- Nat 81 (Can. Lab. Code Adj.). Canadian Employment Law Today | 11 More Cases « from PROGRESSIVE on page 1 Suspensions went back to written warnings Moral decision « from FAMILY on page 7 As a result, DND's initial refusal to grant Guilbault's request didn't hinder his abil- ity to meet his legal obligations towards his family, so there was no discrimination, said the board. e board also found that when DND fi- nally did provide accommodation by allow- ing Guilbault to use his lunch break to leave 30 minutes early, it wasn't a legal obligation but rather a moral one to help employees seek a work-life balance in good faith. e length of time it took to implement the solution was not the employer's fault, but rather because of "the inability of the people involved to agree" — including Guilbault's "complete refusal to enter into discussions," said the board. It acknowledged the case was "borderline," but DND didn't discriminate because Guilbault's children weren't in dan- ger and his legal obligations were met. e grievance was dismissed. For more information see: •Guilbault c. Conseil du Trésor (Ministere de la Défense nationale), 2017 CarswellNat 446 (Can. Pub. Service Lab. Rel. & Emp. Bd.). Employer didn`t have sufficient evidence to link worker to last incident

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