Canadian HR Reporter

CANADIAN HR REPORTER October 2, 2017 NEWS 7 Emplo y ment Law Today Canad a ian 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. As a subscriber you will learn the strategies and techniques that enable businesses to devote more of their focus to productivity and profitability. Our bi-weekly newsletter will connect you with the most current employment law-related rulings in court, tribunals and other judicial bodies. Save valuable hours of research and spend more time using the information to improve procedures and decisions. COMPLY WITH THE LATEST EMPLOYMENT LEGISLATION Access a sample issue now at: bitly.com/CELT-FreePreview-16 Subscribe today for only $199 * Order No. 20612-17-68648 Save $100 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 Start your subscription and receive: • 22 issues of Canadian Employment Law Today • Full access to Canadian Employment Law Today's website, www.employmentlawtoday.com, featuring a searchable archive of past articles • Free access to Canadian Employment Law Today's multi media centre - the home for employment law videos, webinars and blogs TAKE ADVANTAGE OF OUR SPECIAL INTRODUCTORY OFFER *Available to first-time subscribers only To order your subscription call 1.800.387.5164 or 416.609.3800 www.employmentlawtoday.com/subscribe Saskatchewan office workers casualties of political infighting First Nation band's workers viewed as 'enemies, ' awarded $150,000 by adjudicator BY JEFFREY R. SMITH A SASK ATCHEWAN First Nations band must pay two for- mer office workers more than $150,000 total for unjustly dis- missing them during a period of political infighting among the band's leadership. Nicole Sylvestre and Cheryl Benjamin worked for the Buf- falo River Dene First Nation band (BRDN) in northwestern Sas- katchewan. Sylvestre was hired in 2001 as a finance clerk in the band office, while Benjamin was hired in 2013 as a receptionist in the band office. Both were members of the band. In early 2014, BRDN was in a state of turmoil. One of the band councillors was charged with two counts of assault — against anoth- er councillor and a band employ- ee — as well as uttering a death threat against the band manager. All of these incidents happened at the band office, and on the same day as one of the assaults and the death threat, the band chief was charged with assaulting the band manager's husband and being in- toxicated on the reserve. Sylvestre and Benjamin wit- nessed part of the March 31 inci- dents — Sylvestre saw the council- lor come into the office and ver- bally threaten the other council- lor who was eventually assaulted. Benjamin saw the councillor chas- ing the employee who was eventu- ally assaulted. Both feared for the safety of themselves and other employees in the band office, so Benjamin called the RCMP and they left work. A few days later, the band chief submitted his resignation, leav- ing a leadership vacuum. An- other councillor decided to hold a community meeting, where it was decided to hold an election. Benjamin made posters notifying band members of the meeting. However, there was a group of councillors and band members who didn't want the chief to re- sign or to have an election, led by the councillor charged with the assaults. ey felt the councillor who organized the meeting didn't have the authority to do so, so they told the chief his resignation wasn't accepted. e decision to reinstate the chief led to a dispute over band property and finances. e dis- pute led to tension and confusion in the band office between two opposing factions — those who reinstated the chief and those pushing for an election. e coun- cillor pushing for the election was given a termination letter by the other faction, but refused to ac- cept it. Office employees sent home The pro-election councillor, at the direction of another council- lor, made an announcement over the intercom on April 14 telling employees to go home until the dispute was sorted out. One coun- cillor told the employees, "Don't worry, you'll still have your jobs." The pro-chief faction pro- ceeded as if the pro-election councillor was terminated and resumed operations at the band office. ey took a few days to get things settled and some employ- ees returned to work. However, some — including Sylvestre and Benjamin — weren't sure about returning. Sylvestre in particular had reported to the pro-election councillor and Benjamin, like many in the community, sup- ported an election and was un- easy about returning to work with the pro-chief faction in control. An office employee was in- structed to call the employees who hadn't yet returned and tell them to come back or they would be considered to have abandoned their jobs. Only one employee was successfully reached that day and she returned to work. ere was no answer at Sylvestre's home and a message was left with Ben- jamin's mother, but BRDN didn't follow up with these employees. On April 28, two weeks after the employees had been sent home, the chief and council had a meeting with Indian and North- ern Affairs Canada. One council- lor proposed the employees who were still off work be reinstated, but instead a resolution remov- ing signing authority for financial DEGREE > pg. 10 e decision to reinstate the chief led to a dispute over finances.

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