Canadian HR Reporter

CANADIAN HR REPORTER August 7, 2017 EMPLOYMENT LAW 5 Jeffrey Smith Legal View Correctional officer's drug bust gives employer just cause for dismissal Arrest violated standard of professional conduct, code of ethics, collective agreement An adjudicator has upheld the dismissal of a New Brunswick corrections officer who was found with a marijuana-growing op- eration and weapons in his home. Harold Peterson was a correc- tional officer at the Atlantic In- stitution in Renous, N.B. (AIR), a maximum-security institution operated by Corrections Canada (CSC). He first became a correc- tional officer in 1999 at a provin- cial youth centre in Miramichi, N.B. Over 12 years there, he was never disciplined but was exposed to assaults, inmates who harmed themselves, hangings, and a fire. Peterson left the provincial sys- tem to work for CSC in 2011, first working at another facility before moving to AIR after a use-of-force incident that caused anxiety and sleeplessness. He didn't seek medical treat- ment for his issues, but started calling in sick from his depression, anxiety and a back injury he suf- fered in a car accident. Peterson was told to bring in doctors' notes for all his absences and was referred to the employee assistance program, but he didn't go. He did some Internet research and concluded he had post-trau- matic stress disorder (PTSD), but a doctor he consulted didn't be- lieve that was true. Peterson also began trying marijuana to alleviate his symp- toms, against his doctor's advice. He found it helped so he bought seeds and planted them on a neighbour's property, without in- forming the neighbour. On Feb. 24, 2014, Miramichi police executed a search warrant of Peterson's house. ey found dried marijuana throughout the house totalling 4.22 kilograms. ey also found grow-op equip- ment and potting soil, along with strings to support the plants hanging from the basement ceiling. Police also found several large hockey bags, a common method of transporting marijuana. ere were also unsecured weapons located. Peterson was uncooperative with police and refused to reveal how many firearms he had in the house. He admitted to smoking marijuana but had no prescrip- tion for it. He was arrested and released with conditions. e arrest was covered in the local newspaper, which stated Peterson was a corrections offi- cer and included photos of seized marijuana in buckets with AIR labels. AIR's assistant warden was in- formed by police of Peterson's ar- rest — Peterson never told CSC himself — and informed the act- ing warden. ey put Peterson on paid leave and then suspended him without pay on March 7, 2014, while a disciplinary investi- gation was conducted. CSC's investigation included interviews of the arresting of- ficers, Peterson, and some of his co-workers. Peterson was told several times the investigation was separate from any criminal investigation, but Peterson said little on his lawyer's advice. He said he suffered from PTSD and chronic back pain, but pro- vided no information other than saying he had seen a psychiatrist. CSC didn't search for more in- formation as it felt Peterson was obligated to provide it to support his claims. When the investigation was completed, Peterson was given a draft copy but refused to acknowl- edge it. His criminal trial was dragging on and CSC was finding it harder to stay in touch with Pe- terson, so it decided to terminate his employment on Jan. 7, 2015. e termination letter stated the investigation determined Pe- terson's actions were inconsistent with his role as a peace officer. His admitted drug use, improperly stored firearms, and dishonesty violated CSC's standards of pro- fessional conduct, the value and ethics code for the public sector, and the standards of conduct out- lined in the collective agreement between the Treasury Board and the Union of Canadian Correc- tional Officers. It also said CSC couldn't trust him working with firearms or working with inmates with similar offences who were aware of the ar- rest, and the trial damaged CSC's reputation and public trust. Peterson grieved the dismissal, claiming his PTSD and other mental issues weren't given con- sideration in CSC's decision to terminate. He also pointed to his clean disciplinary record and said CSC should have looked at pos- sible positions where he could work without needing a firearm or direct contact with inmates. Adjudicator notes lengthy career Adjudicator Margaret Shannon noted that while Peterson had a "lengthy career in the world of corrections," he had been an em- ployee of CSC for less than four years. Peterson's arrest was a seri- ous matter, particularly since the nature of the charges — drugs and firearms — related directly to his correctional officer duties, where he dealt with individuals with similar charges and which required a high level of trust and responsibility. Shannon found CSC's inves- tigation was a proper one and involved interviews with all per- tinent people such as the police and co-workers. If the investiga- tion didn't cover all the bases, it was because of Peterson's refusal to co-operate. While it was his right to not answer questions because of the separate criminal matter — as his lawyer advised him — it gave CSC less to work with when making its disciplinary decision, she said. Shannon also found that CSC was unaware of any medical is- sues, as Peterson only briefly mentioned mental health issues but didn't provide any further in- formation — and he hadn't actu- ally been diagnosed with PTSD. In addition, Peterson was fully aware that cultivating marijuana was illegal and his job would be at risk if he was caught. e fact he tried to hide what he was do- ing by secretly planting marijuana on a neighbour's property dem- onstrated he knew the deal, said Shannon. Peterson also hadn't shown any remorse and took no steps to ac- quire marijuana legally — which he could have if he needed it for medical purposes, she said. Combined with the negative media spotlight it brought on CSC, it was serious enough that demotion or discipline wouldn't do the trick. CSC had just cause for dismissal. "rough his actions, (Peter- son) made himself unsuitable to be a (correctional officer)… (He) was well aware of the implications of his illegal activities if they were discovered," said Shannon. "His attempts to disguise them is proof of this and brings not only his suitability to be a (correctional officer) into question but clearly indicates that the employer's trust in him was not warranted, which renders the continued employ- ment relationship untenable." For more information see: • Peterson v. Deputy Head (Correc- tional Service of Canada), 2017 CarswellNat 1730 (Can. Pub. Service Lab. Rel. Bd.). Jeffrey Smith is the editor of Canadian Employment Law Today. For more information, visit www.employment lawtoday.com. PM40065782 Emplo y ment Law Today Canad ad a ian www.employmentlawtoday.com September 14, 2016 Wrongful dismissal damages — Bonus entitlement BY RONALD MINKEN FOR some workers, a bonus makes up a signifi cant portion of their remuneration. For others, a bonus is something that may or may not be provided by their employee at specifi c times of the year — such as Christ- mas, for example. Often, an employee who is dismissed without cause will ask whether her entitle- ment to wrongful dismissal damages will in- clude a component for lost bonuses. Compensation for wrongful dismissal can include an amount for a bonus which the employee would have been entitled to re- ceive during the notice period. In the absence of an employment agree- ment specifying to the contrary, the question is whether the bonus has become an essen- tial component of the employee's remunera- tion or whether it is essentially a gift — to be delivered at the employer's sole discretion. A recent decision of the Ontario Court of Appeal, Paquette v. TeraGo Networks Inc., dealt with this issue. When Trevor Paquette was fi red by Tera- Go Networks, the dismissed employee and his former employer could not agree on a severance package. Paquette brought a sum- mary judgment motion to determine the pe- riod of reasonable notice and damages. e motions judge awarded notice at 17 months and based damages on salary and benefi ts that Paquette would have earned during the 17-month notice period. e motions judge did not award damages for bonuses, because the employer's bonus plan required an em- ployee to be "actively employed" at the time the bonus was paid. Paquette appealed that decision on the issue of whether the motion's judge made a mistake in not including compensation for lost bonuses. e Ontario Court of Appeal allowed the appeal. e motion judge erred in focusing on the Nurse fi red for forcing care on resisting care home resident Intentions were good but nurse made a mistake forcing protesting resident to have a shower, resulting in injuries to resident BY JEFFREY R. SMITH AN ARBITRATOR has upheld the dismissal of a registered practical nurse at an Ontario long- term care home after a resident suff ered injuries after resisting care and the nurse failed to fi le an incident report. Chester Posada was a regular part-time reg- istered practical nurse (RPN) at Bendale Acres, a long-term care home operated by the City of Toronto. He was hired in September 2008 and worked in the behavioural response unit, a locked area housing cognitively impaired residents who could act out. On Aug. 20, 2014, Posada was working in the unit with three other staff members. One of the patients, an 86-year-old man referred to as TS, suff ered from dementia and several other affl ic- tions that required him to be on blood thinners. e blood thinners increased TS' susceptibility Intoxicated, dishonest -- and reinstated with full pay pg.3 Employe ignored sunset clause in collective agreement CREDIT: LIGHTHUNTER/SHUTTERSTOCK Getting ready or legalized marijuana pg. 4 Employers will have to treat employee use somewhat differently -- but still as an intoxicating substance ASK AN EXPERT pg. 2 Employee harassment outside work ACTIVE on page 7 » EMPLOYER on page 6 » with Stuart Rudner Canadian Employment Law Today is an indispensable tool in keeping managers, business owners, trade unions, HR professionals and law firms up-to-date on the latest developments in employment law. 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