Canadian Employment Law Today

October 11, 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 HR Reporter, a Thomson Reuters business 2017 Canadian Employment Law Today | 7 More Cases back in the regular vehicle they already had. e manager directed Comeau and Pettis to return with their original secure vehicle and left at the end of his shift with the im- pression that they were clear on this instruc- tion — he spoke to Comeau just before he left and the overnight manager on duty had spoken to Pettis. However, Comeau and Pet- tis returned with the regular vehicle, having left the secure one at the hospital. e next morning, before the inmate had been returned, an emergency medical transfer was scheduled for another inmate. Because there was less than 72 hours' notice, policy required it to automatically become a secure escort situation. e secure vehicle Comeau and Pettis had been assigned the previous night was assigned for this job, but it couldn't be found. e manager on the overnight shift checked with the correction- al officers who had taken over at the hospital and discovered the secure vehicle was with them, having not been returned by Comeau and Pettis. ere were no other secure vehicles at the institution with regular licence requirement, so the manager had to call the fleet office to find someone with a special class of licence. is took about 40 minutes. CSC determined Comeau and Pettis had disobeyed orders to return in the secure vehicle they had taken and didn't inform management of their change in plan. As a result, they jeopardized the safety of the in- stitution, inmates, and staff. e overnight manager held disciplinary hearings for both of them. Pettis said he had followed the directions on the dispatch sheet because they made more sense than the manager's instructions. While he said he didn't intend to be insubor- dinate, he offered no reason why he didn't tell the manager he had left the secure vehicle in Halifax. Comeau also indicated she didn't in- tend to be insubordinate, but otherwise said nothing at the direction of her union repre- sentative and showed no remorse from what the manager could see. Since neither Pettis nor Comeau had any prior discipline on their records, the over- night manager issued a one-day financial penalty to both. ey grieved the penalty, arguing it was without cause and their dis- cipline was decided by the overnight man- ager, not the one who had given them the order. CSC countered that Comeau and Pettis had been given a clear order to return with the secure vehicle with a clear reason — to ensure a secure vehicle was available for an emergency. ere was no evidence of any health and safety concerns over using an unsecure vehicle to transport a minimum- security inmate from the hospital back to the institution, but at any rate they didn't contact management with any concerns before de- ciding to switch vehicles. e board found that the decision of Co- meau and Pettis to leave the secure vehicle at the hospital to transport the inmate was "without any malice" and was made out of concern for "the employer's policies and the threat posed to the public" — they believed they were acting in the best interests of the institution and the public. Regardless, there was no clear evidence the two correctional officers were given "a direct and unequivocal order" to return the secure vehicle. In addition, the board found the overnight manager reacted disproportionately and shouldn't have conducted the disciplinary hearing, as she seemed to take the incident as a challenge to her authority and was too close to the situation. CSC didn't properly investigate the situation, as it didn't ask Co- meau and Pettis why they had left the se- cure vehicle in Halifax — which would have showed there was no intention to defy the overnight manager, said the board. e board found the one-day financial penalty was inappropriate and inconsistent with progressive discipline for two employees with no disciplinary records. It ordered CSC to compensate Comeau and Pettis for their financial loss, plus interest over the time since the penalty was issued, and expunge the discipline from their records. See Comeau v. Deputy Head (Correctional Service of Canada), 2017 CarswellNat 4021 (Can. Pub. Service Lab. Rel. & Emp. Bd.). Officers felt vehicle switch made more sense « from DISCIPLINE on page 1 when terminating a probationary employee: • e employee was made aware of the basis for the employer's assessment of suitabil- ity before or at the commencement of em- ployment • e employer acted fairly and with reason- able diligence in assessing suitability • e employee was given a reasonable op- portunity to demonstrate suitability • e employer's decision was based on an honest, fair and reasonable assessment of suitability. In short, employers' discretion to dismiss probationary employees is not unfettered and they must actually assess employees during the probationary period. It would be prudent for employers to maintain records, as opposed to verbal assessments, which can be referred to and relied on in the event that a probationary employee who does not make it into full-time employment seeks to challenge the termination. For more information see: •Buchanan v. Introjunction Ltd., 2017 Car- swellBC 1627 (B.C. S.C.). •Ly v. Interior Health Authority, 2017 Car- swellBC 37 (B.C. S.C.). Worker left secure employment for new position ABOUT THE AUTHOR DAVID J. MASTER David J. Master is an Associate at MacDonald & Associates, a boutique employment law firm in Toronto specializing in Canadian employment law for both employers and employees. He can be reached at (416) 601-2300 or Both officers said they didn't intend to be insubordinate « from EMPLOYEE FIRED on page 3

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