Canadian Employment Law Today

June 21, 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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Canadian Employment Law Today | 3 Canadian HR Reporter, a Thomson Reuters business 2017 Cases and Trends WEBINARS Interested in learning more about employment law issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as handling risky terminations, drugs and alcohol in the workplace, employee off-duty conduct, and workplace investigations. To view the webinar catalogue, visit Jumping the gun on cause for dismissal Employer's failure to follow progressive discipline procedure leads to unjust dismissal and one month's pay for fired employee BY JEFFREY R. SMITH A SASKATCHEWAN company must pay a fired employee one month's compensation when it failed to follow its own progressive discipline policy and resorted to dismissal too quickly, an adjudicator has ruled. Mark Huber was hired in April 2014 by Spearing Service, an oilfield trucking com- pany in Oxbow, Sask., to be a truck driver. His first performance review six months later indicated he was meeting or exceeding company expectations in 10 of 12 categories, with dependability and communications the two areas where he was unsatisfactory. Spearing Service had a discipline policy that stipulated any person who didn't follow applicable legislation or the company's own safety rules would be disciplined. It set out a program of progressive discipline starting with a verbal caution and retraining if nec- essary, followed by a written reprimand and suspension if necessary, and finally "suspen- sion, termination or any such action as may be warranted under the circumstances of the incident." e policy also said that a "blatant disregard" for safety rules that jeopardized the safety of the employee or others "may result in the immediate removal of that in- dividual from the job site." Huber received a copy of the discipline policy and signed an acknowledgement. Worker received warnings On Jan. 17, 2015, Huber was working when his truck hit an icy patch and went off the road. Spearing Service gave him a verbal warning to slow down on such approaches. Huber claimed numerous trucks had slid off the road in the same area and the road should have been salted or graveled. A little over a month later, on Feb. 22, Hu- ber was on the last day of a seven-day stretch of work when he slipped and fell on ice while getting out of his truck. He didn't think he was hurt, but two days letter when he woke up he couldn't move. His spouse drove him to the hospital for treatment and he reported the injury when he returned to work on Feb. 27. Spearing Service felt the five-day delay in reporting the injury was too long and issued Huber a warning notice on March 10. e notice stated that company policy required employees to notify the company of an inju- ry prior to seeking medical attention. It also referred to this being a "second warning." Huber worked without any issues for a few months until Aug. 18, when he was observed not wearing a hardhat or using a safety mon- itor. He also didn't use his ground cable and his fire extinguisher was found to be expired. Huber had filed a ticket indicating his re- quired safety items and personal protective equipment were checked off. Spearing Service issued a warning notice to Huber, but it wasn't signed by Huber nor anyone from management. Huber later de- nied seeing the warning notice, but recalled the incident from which it stemmed. How- ever, he received a text from his manager saying it was a "first warning" and he was be- ing suspended for three days. A few days later on Aug. 22, Spearing Service issued another warning to Huber for a safety violation, in this case using a cell phone while on premises serviced by Spear- ing Service. e notice indicated this was a "final warning" and further infractions would lead to termination of employment. Management met with Huber on Aug. 28, and informed him that his employment was terminated effective immediately. On Sept. 4, Huber made a complaint to Human Resources and Social Development Canada (HRSDC) claiming that Spearing Service had not paid him overtime for extra hours he had worked. He also filed a com- plaint of unjust dismissal, claiming his ter- mination was retaliation for his unpaid over- time complaint. e adjudicator found that the verbal warning given to Huber after his truck slid off the road was a legitimate first step in the progressive discipline process. However, Huber should not have been disciplined for not reporting his February 2015 injury before seeking treatment, as he didn't initially realize he had been injured. In addition, the policy made an exception for employees who needed to seek emergency medical care, and waking up unable to move was an emergency, said the adjudicator. e adjudicator also noted that the warn- ing notice Huber received on Aug. 18 for his safety violations was categorized by the manager as a "first warning," essentially indi- cating to Huber that the previous incidents were not considered to be instances of disci- pline under the progressive discipline policy. As for the Aug. 28 incident, the company referred to it as a "final warning," but no fur- ther incidents occurred before Huber was dismissed on Aug. 28. e adjudicator determined that Spearing Service didn't have just cause for dismissal, as it didn't follow its own progressive disci- pline program. e adjudicator agreed that Huber's misconduct warranted disciplinary action, but dismissal wasn't appropriate as only the two August 2015 incidents were disciplinary incidents — the truck sliding incident was characterized as coaching and the injury reporting incident wasn't miscon- duct. e two disciplinary incidents were referred to as a "first warning" and a "final warning," so Spearing Service couldn't ter- minate Huber's employment without addi- tional misconduct, the adjudicator said. e adjudicator felt reinstatement wasn't appropriate, as Huber had subsequently had his driver's licence suspended after an Octo- ber 2016 DUI conviction and a requirement to have an ignition interlock installed on any vehicle he was driving. In addition, Huber should have been suspended instead of dis- missed, so that should be subtracted from his damages, the adjudicator said. Spearing Ser- vice was ordered to pay Huber one months' wages and benefits, equal to $4,947.49, plus $5,809.46 in legal costs. For more information see: •Huber and Spearing Service (2006) Ltd., Re, 2017 CarswellNat 1868 (Can. Lab. Code Adj.).

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