Canadian Employment Law Today

August 16, 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 | 11 Canadian HR Reporter, a Thomson Reuters business 2017 More Cases checks and Concorde also had to comply with Transport Canada regulations, in- cluding security refresher courses every six months. Concorde employees also had to complete an online security awareness program administered by the Airport Au- thority. e Airport Authority directed Concorde on various rules and it had the right to order the dismissal of any Concorde employee without giving a reason under the contract between it and Concorde. Concorde's own safety training stressed that employees were not to take any action — including using baggage systems — with- out fi rst having clearance from a manager or the control room at the airport, who ob- tained clearance from Transport Canada, as there was a contingency plan in place for "upset conditions." Hyderi completed the safety training and acknowledged it. On July 14, 2016, the Calgary airport had a power outage that caused baggage screen- ing equipment to stop operating. Transport Canada and the Airport Authority were no- tifi ed and an electrician was called in. e machines were restarted and the comput- ers rebooted, but it took some time to test the baggage screening equipment. As a re- sult, there was a long delay for unscreened checked luggage. Luggage that was still on a conveyor belt at the time of the power out- age also had to be unloaded and re-screened. Transport Canada instructed Concorde to screen checked luggage at one set of equipment used for oversized luggage that hadn't been aff ected. Hyderi and another employee were told by radio to move bags from the check-in area to the line for over- sized luggage. Hyderi claimed he wasn't contacted by the control room and he had just fi nished cleaning the lunchroom when another em- ployee asked him to come help him in the check-in area. Shortly thereafter, the baggage co-ordi- nator received a call from the Airport Au- thority saying there was an incident with unscreened bags. e co-ordinator went to the ticketing area and found Hyderi, who told him bags were being placed on the con- veyor belt for oversized luggage without having fi rst passed through the screening device. Hyderi went on to say he had made a mistake but the other employee was respon- sible. He also claimed a security employee said they could move unscreened luggage past the screening device and take it to an- other area down a hall for further screening to help speed things up. ey did this until another security employee stopped them. When the incident was reported to Transport Canada, it required all luggage in the restricted area to be re-screened be- cause of safety concerns. is made the de- lay worse and more than 100 pieces of bag- gage didn't make it to their fl ights on time, resulting in fl ight delays. Hyderi worked the rest of his shift that day and Concorde was fi ned for the incident. e next day, the Airport Authority con- tacted Concorde and requested the dis- missal of the baggage agents involved in the security breach, though it gave no specifi c reason for the dismissal. When Hyderi ar- rived for work, he was summarily dismissed and his restricted area pass was revoked. e other employee was also dismissed. e adjudicator fi rst found that the bag- gage handling services provided by Con- corde were subject to the Canada Labour Code because they were "an integral ele- ment of the operation of an airport" and air- port operations fall within the federal aero- nautics jurisdiction. As a result, Hyderi's dismissal was subject to the unjust dismissal provisions of the code. e adjudicator also found that while maintaining security is "a fundamental employment obligation of all employees involved in airport operations," a breach of security, like any employee misconduct, should be assessed on the nature and se- riousness to see if it justifi ed termination. However, there was no indication whether the Airport Authority or Concorde con- ducted investigations into the incident be- fore Hyderi's employment was terminated. Concorde argued that because of its con- tract with the Airport Authority, it had no choice but to fi re Hyderi when the Author- ity requested it. e adjudicator disagreed, saying that Concorde couldn't contract out of its legal obligations under the code. e company, as with any employer, had to un- derstand the circumstances before deciding to dismiss an employee, said the adjudicator. ough Hyderi's actions exacerbated the delay and caused a security breach, it was not a situation that was his creation, the adjudicator found. A security employee al- lowed access to another area for luggage that hadn't yet been screened and it was rea- sonable for Hyderi to think his actions were permissible due to the "tacit approval" of security. His statement to the co-ordinator that someone else was responsible was con- sistent with this version of events. In addition, the adjudicator noted that Hyderi was allowed to continue working and there was no indication anyone thought he was a security risk for the rest of the day. "I fi nd Mr. Hyderi's actions, although mis- guided, were a bona fi de attempt to assist with resolving a situation that arose during upset conditions," said the adjudicator. "Fur- ther, they were not deemed to be so serious at the time that his restricted access pass was immediately revoked. Rather, he was allowed to continue working his shift and it was only revoked with the termination of his employment the following day." e adjudicator determined that Hyderi's intentions were good in trying to speed things up and the security breach was not suffi cient to justify dismissal, particularly since he had no previous discipline. A pro- gressive disciplinary approach would have been more appropriate. However, the adjudicator found rein- statement wasn't feasible, as Hyderi would have to obtain another restricted area pass from the Airport Authority in order to re- sume working in the same position. e ad- judicator felt this was unlikely in light of the Airport Authority's instructions to dismiss Hyderi, so he instead awarded damages of $10,000 — about three months' salary — plus $750 in severance — fi ve days' wages, as required under the code. See Hyderi v. Concorde Baggage Services Inc., 2017 Car- swellNat3068 (Can. Lab. Code Adj.). 'Tacit approval' of security mitigated misconduct « from SECURITY on page 1 Employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog includes a tool for readers to offer their comments, so discussion is welcome and encouraged. The blog features topics such as employee personal leaves, defi nition of the workplace, fi xed-term contracts, and workplace harassment. You can view the blog at

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