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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©2017 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. We acknowledge the financial support of the Government of Canada, through the Publications Assistance Program (PAP), toward our mailing costs. GST #897176350 Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: customersupport. Website: Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Media Solutions, Canada: Karen Lorimer Publisher/Editor in Chief: Todd Humber Editor: Jeffrey R. Smith E-mail: Sales Manager: Paul Burton Email: Phone: (416) 649-9928 Emplo y ment Law Today Canad ad a ian How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 YOU MAKE THE CALL Did Metro have just cause for dismissal? OR Was the dismissal unfair? IF YOU SAID Metro had just cause for dismissal, you're right. e arbitrator com- mented that generally, "theft is suffi cient to uphold the penalty of discharge because in- ternal theft is diffi cult to detect." In addition, trust was fundamental for the employment relationship. When Chemm was confront- ed with the allegations, she admitted to the theft of store product — grapes, meatballs, deli slices, and French fries — but didn't apologize for her behaviour, even though she knew it was a breach of company policy. In addition, she went further, trying to jus- tify and downplay her actions, saying she ate food destined to be thrown out or she was helping the store by testing the quality of product before it was sold to customers. e arbitrator particularly questioned the garbage excuse, as there was no reason ex- tra food such as grapes couldn't be used in another platter instead of being thrown in the garbage. e arbitrator found that with 15 years of seniority, Chemm should have known bet- ter than to "graze" while working, and she "simply does not comprehend that with her consumption of the employer's product that she in fact was stealing from her employer." ough Chemm said in the hearing that now that she knew about the consequences of the rules and wouldn't continue eating food in the store if reinstated, the arbitrator found this to be "a far cry from the apology (she) needed to provide to the employer." e arbitrator determined that Chemm's actions broke the bond of trust with Metro beyond repair by stealing food while work- ing and failing to acknowledge or apologize for her misconduct. Chemm's dismissal was upheld. For more information see: •Metro Ontario Inc. and Unifor, Local 414 (Chemin), Re, 2016 CarswellOnt 14352 (Ont. Arb.). 'Grazing' deli employee sent packing THIS EDITION of You Make the Call features a grocery store deli employee who was caught eating some extra food. Phalla Chemm started working in a Metro grocery store in Ottawa in 2000, initially as a part-time deli clerk. Her job entailed pre- paring ready-made salads and sandwiches in the store's deli department. When Metro launched its "Fresh to Go" line of products, she worked a lot of overtime, sometimes totalling up to 12 hours a day. She was con- sidered a good worker and management was happy with her performance. Chemm worked the night shift for her fi rst six years in the deli department — the store was open 24 hours a day, seven days a week — and sometimes she ran out of black forest ham, which was required for a certain type of sandwich. When that happened, she sampled another type of meat and substituted it in the sandwich. Chemm later moved to a full-time day shift in the deli department. On Nov. 8, 2015, she returned from a vacation and was sched- uled to work from 7 a.m. to 4 p.m. However, her manager told her the sandwich girl had been fi red and asked her if she could work the 11:30 p.m. to 7:30 a.m. shift as well. She also learned that other employees had been suspended for eating product. Ten minutes into her day shift, the store manager called Chemm into his offi ce with Metro's loss prevention offi cer and a union representative. She was asked if she knew what "grazing" was, and Chemm replied that she did — it referred to employees eating store product while working without paying for it. Chemm acknowledged that she was aware of Metro's employee purchase policy, but admitted that she would occasionally eat a French fry that was being thrown out or grapes, meatballs and deli slices when pre- paring a tray. She said she didn't think it was wrong, as trying out the product ensured it was appropriate to be served to customers and therefore helped the company. She also said she didn't take breaks, so eating a grape from a tray gave her energy to keep working — a single item off a tray "wasn't so wrong," she said. e next week, on Nov. 16, Metro termi- nated Chemm's employment for breach of trust and company policies and procedures. e union grieved her termination, arguing that Chemm was a long-term employee and she didn't have wrongful intent when she breached store policy — she claimd she only understood the consequences after return- ing from her vacation and seeing that people were being suspended. Worker believed she was helping the store by testing food before releasing it to customers.

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