Canadian Employment Law Today

July 19, 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 12 YOU MAKE THE CALL Was dismissal too strong of a response? OR Was there just cause for dismissal? IF YOU SAID there was just cause for dis- missal, you're right. e adjudicator noted that honesty and trust were "the foundation of a viable and productive employee-em- ployer relationship." While Hamlil's inten- tion in her email to the former president of Hercules was to raise a concern about the scorecards to someone she thought was in a position of authority, she didn't take the time to determine whether her suspicions were valid or whether she was actually reporting to someone who was still involved with the company. She didn't have any real evidence supporting her suspicions and didn't have a reasonable explanation as to why the current president would be deceitful to benefi t some employees over others. is was particularly important because her allegations were seri- ous and "had the potential of undermining (the president's) integrity with an important shareholder," the adjudicator said. Hamlil also made it clear she intended to disobey the instructions from the HR de- partment and the president to provide her sick days. Regardless of her reasoning, she unilaterally decided she would report no sick time, which was "a clear threat to violate em- ployer policy, the adjudicator said. e adjudicator also found Hamlil acted dishonestly when she tried to cover up her initial email to the former president, ask- ing him to not tell anyone and being evasive when the current president wanted to know what she was talking about. e adjudicator found Hamlil's miscon- duct was suffi cient cause for discipline. Since she compounded her initial email's in- subordination with dishonesty, her actions together constituted just cause for dismissal. Her claim was dismissed. See Hamlil and Hercules Forwarding UCL, Re, 2016 Car- swellNat 1566 (Can. Labour Code Adj.). Worker goes behind company president's back THIS INSTALMENT of You Make the Call features an employee who sent an email denigrating a superior and then tried to take it back. Yamina Hamlil joined Hercules Forward- ing, a trucking company based in New West- minster, B.C., in November 2013, in its Cal- gary offi ce. Her job involved analyzing data and creating reports for company manage- ment, reporting directly to the company's president, who was the son of the previous president. Out of several reports Hamlil prepared for management, the primary one was a sales scorecard that was used to track sales activity and promote friendly competition among the Hercules sales staff . In order to complete the scorecard, Hamlil had access to confi dential sales data that was kept in company databases. In January 2014, Hamlil began working from home after an interpersonal issue de- veloped between her and other staff in the offi ce. Later in the year, Hercules' president became concerned he was unable to reach her during business hours. As a result, he had the company's human resources de- partment contact her in February 2015 and have her email her information on any ab- sences or days off she planned to take or had already taken so the company could keep track of them. Hercules had a system where employees could accumulate four hours per month in sick time that could be taken with pay for a short-term illness. In March 2015, a Hercules sales manager found some inaccuracies in the February sales scorecard. He brought them to the attention of the president and Hamlil, and Hamlil agreed to review the calculations. She made some corrections and suggested the sales team didn't enter the data in a timely fashion, though the sales manager said the data had been entered on time. Hamlil began to suspect the president was manipulating data to ensure certain sales staff received more credit than others. She sent an email to the former president — the current president's father — accusing the president of "mean tricks" and falsify- ing the sales data. She said she didn't feel like running the sales scorecard anymore and she didn't want to provide her sick days and days off taken to the HR department because since she was working from home, she could do her work "whether I am sick or dead." Four days later, on March 30, 2015, Ham- lil sent another email to the former presi- dent saying she had been assuming some things and the current president was in fact being kind to her. She said everything was fi ne and asked him not to mention it, though she would let him know if the same things were still happening. e same day, Hamlil started to apologize to the current president, but said "never mind it is already done." Curious, the presi- dent investigated the matter further and he discovered Hamlil's emails to his father, including an unsent email that contained unfl attering references to him. On April 1, 2015, Hercules terminated Hamlil's employment for insubordination causing Hercules to lose trust and confi - dence in her. e termination letter stated that her insubordination stemmed from her refusal to follow company policy and di- rections by not providing her sick days, and her "insolent and disrespectful behaviour in criticizing the president of the company," including "serious allegations of wrongdo- ing against the president of the company including regarding his conduct and char- acter" without any evidence. Hamlil fi led a complaint of unjust dis- missal.

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