Canadian HR Reporter

October 2, 2017 CAN

Canadian HR Reporter is the national journal of human resource management. It features the latest workplace news, HR best practices, employment law commentary and tools and tips for employers to get the most out of their workforce.

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CANADIAN HR REPORTER October 2, 2017 EMPLOYMENT LAW 5 Jeffrey Smith Legal View Spiralbound • August 2017 $48* • L7798-7856 ISBN • 978-0-7798-7856-7 Multiple copy discounts available *Plus applicable taxes and shipping & handling (Prices subject to change without notice) Order your copy today. Visit www.carswell.com or call 1-800-387-5164 for a 30-day, no risk evaluation Alberta Legal Telephone Directory 2017-18 is all about your legal community connecting you to the lawyers and law offices you need in Alberta, Northwest Territories, Nunavut and Yukon. Published annually, it keeps you connected with new and updated names, mailing addresses, email addresses, phone numbers and fax numbers each year. Quickly and easily access: • Law Societies • Courts of Appeal • Federal Court of Canada • Government of Canada departments • Judicial districts and judicial officials • Incorporated Municipalities • Land registration and information services • Provincial government departments • Boards and Commissions • Law Related Services, Institutions and Organizations • University law faculties ... and more Connecting you to your LEGAL COMMUNITY Termination a mutual agreement – not reprisal for harassment complaints Ontario worker had altercations with leaders, claimed harassment – then took payout A worker's brief tenure with an Ontario company came to an end due to a mutual agreement to terminate the employment relationship, and wasn't a reprisal for the worker's harassment complaints, the On- tario Labour Relations Board has ruled. Neil Smith began employment at FIO Automotive, a manufacturer of welded automotive parts for Toyota plants in Stratford, Ont., on Jan. 16, 2017. His employment was under a one-year, fixed-term employment contract expiring on Jan. 16, 2018. As part of the contract, Smith agreed to provide assistance to support production activities whenever needed, and abide by a daily excess-hours agreement. e agreement allowed FIO to assign Smith overtime beyond his normal 40 hours per week. The contract also contained a termination provision that al- lowed FIO to terminate Smith's employment "at any time and for any reason," as long as the com- pany provided him with notice of termination or pay in lieu of notice, as required by the Ontario Employment Standards Act. FIO's intention was to evaluate Smith's performance at the end of the one-year contract, and if he did a good job, offer him per- manent employment. is was standard practice for new hires on fixed-term contracts. FIO also followed a progressive discipline program in which dis- cipline began with a documented "oral reminder" and was followed by suspensions and termination. It also had an attendance policy where employees were expected to tell the company as soon as pos- sible if they were going to be late or absent so it could temporarily re-assign work. Smith's initial assignment was to work with a machine in the plant that was difficult to operate. He didn't like using the machine and noticed other employees didn't usually work continuously on any particular machine. He complained to his team leader and also told him he was taking a community college course in robotics with the hope he would work in FIO's technol- ogy department someday. The team leader reported Smith's complaint to the group leader, who told Smith he had to work on whatever machine he was assigned to. Regardless, Smith only had to work for a few hours at a time on the machine in question. Smith also got the impression the group leader was upset Smith hoped to work in the technology department and decided he didn't want to be under his supervision anymore. Worker complained about supervisor About one month into Smith's tenure at FIO, Smith complained to human resources that his team leader was setting him up for fail- ure and had become upset when Smith had failed to do some pa- perwork. HR discussed the mat- ter with Smith's group leader and it was determined the matter had been cleared up. On Feb. 18, Smith was late for his shift, which led to a confron- tation with his team leader. e assistant manager for production and Smith's group leader learned Smith was upset with how his team leader was treating him, and he had shouted at him when he had arrived late. e group leader talked to Smith about his rate of production — 68 per cent lower than other employees — but Smith didn't believe it was that low. It was decided to put Smith in another zone of the facility where he would work under another team leader. At a followup meeting, Smith again said his former group leader had shouted at him and he felt he was being too closely supervised and targeted for termination, ac- cusing management of manipu- lating his production rate to be lower than it was. He claimed he was just as productive as other employees. e assistant manager and an HR representative met with Smith the next day to review Smith's pro- duction records — documents Smith filled out during daily pro- duction. e documents, based on Smith's own figures, showed his production rate was 68.1 per cent, which was at or near the bot- tom of all employees on his shift. Smith admitted the entries were his own, but "shrugged off " the numbers, according to the assis- tant manager. FIO gave Smith a "corrective action notice" and oral reminder on March 6 for being 40 minutes late for four consecutive Saturday overtime shifts. Smith signed the notice but didn't provide any ex- planation for why he was late. Ten days later, on March 16, the other assistant manager for pro- duction saw Smith leaving work early. Smith was upset and said he didn't like the way he was being treated, so the assistant manager let the matter go. Smith had just had a confron- tation with his new team leader over not having all his paperwork completed. More harassment complaints e next day, Smith called HR before the start of his shift to say he had been to a lawyer and con- tacted "the government" about his perceived mistreatment at work. e HR representative said that unless he had been fired — which he had not been — he should come to work and meet with her before starting his shift. e sec- ond assistant manager was also invited to the meeting. At the meeting, Smith ex- plained he was upset about inap- propriate treatment by his new team leader, saying he had yelled at him and used "the F-word" about Smith not filling out his paperwork completely the day before. He also complained the team leader didn't assign him to the machines Smith preferred. e assistant manager offered to investigate the circumstances with the new team leader and ei- ther assign Smith to a third team leader or work another shift un- der his current one, but expressed concern that there were now two team leaders with whom Smith had problems. Smith declined both options, saying it would hurt his reputation to keep moving be- tween team leaders. He also stated once again that he was studying robotics and re- ally wanted to be a robotics tech- nician — his interest in the pro- duction side of FIO was only for the short-term. Both the assistant manager and the HR representa- tive said there were no openings in the technology department for the foreseeable future and there were other employees with prior- ity for those jobs. Smith indicated he would like to return to his original position under his original team leader, saying his only issue there was the prolonged assignment on the ma- chine he didn't like. e assistant manager didn't think this was a good idea. e HR representative said that since Smith didn't plan on staying in production for very long and didn't like the options, "maybe it's just best we end this now." She offered to pay Smith for the re- mainder of his shift that day plus one week's pay, and he agreed. She put together a letter indicating the agreement and gave it to Smith. Neil Smith worked at FIO Automotive in Stratford, Ont. Credit: Google Street View NO > pg. 12

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