Canadian Employment Law Today

December 6, 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 Was there just cause for dismissal? OR Was dismissal out of proportion for the misconduct? IF YOU SAID dismissal was out of propor- tion for Makarchuk's misconduct, you're correct. e adjudicator agreed that Makar- chuk's disconnection of the GPS unit was a breach of company policy and provided just and reasonable cause for discipline. Makar- chuk's failure to return phone calls during work hours when SC360 didn't know where he was also provided cause for discipline, said the adjudicator. However, Makarchuk had worked for SC360 for 11 years without any prior discipline, warnings, or perfor- mance issues. e two incidents warrant- ing discipline — the failure to answer calls and the GPS unit disconncection — were the fi rst two Makarchuk had on his record and weren't enough to serve as culminating incidents leading to dismissal, said the ad- judicator. " ere is no history of repeated wrong- ful acts committed by (Makarchuk) which would justify the application of a culminat- ing incident analysis to support the termi- nation," the adjudicator said. e adjudicator also found that the two in- cidents of misconduct were not "wilful or premeditated." e GPS unit disconnection, while serious, was "a momentary lapse in correcting the issue of the noise in order to focus on work activities and then failing to reconnect the device." e failure to return phone calls during a workday wasn't very serious on its own, so should be considered mild misconduct, the adjudicator said. e adjudicator determined that Makar- chuk's misconduct deserved discipline, but termination of his employment was exces- sive. SC360 was ordered to reinstate him to his employment with a fi ve-day suspension on his record instead. e company was also ordered to provide Makarchuk with com- pensation for lost wages from the date of his termination to his reinstatement, minus fi ve days from the suspension. For more information see: • Makarchuk and SC360 Inc., Re, 2017 Car- swellNat 6078 (Can. Lab. Code Adj.). Technician disconnects phone, GPS, then employment THIS INSTALMENT of You Make the Call features a worker on modifi ed duties who claimed his dismissal was unjust and related to his disability. Cory Makarchuk was hired as a con- nectivity technician in Ontario by SC360, a telecommunications provider based in Montreal that serviced regions in Quebec and Ontario, in May 2006. He worked with- out any problems until August 2016, when he injured his left shoulder in a workplace accident. Following the accident, he had physical restrictions because of his injury, so he had to be placed on modifi ed duties that involved providing support to other SC360 technicians in the fi eld as well as doing work in the shop. On Feb. 16, 2017, the territory manager for Southwestern Ontario received an email from a technician that said Makarchuk had not responded to calls for a few hours af- ter fi nishing with another technician. Data from the GPS tracking unit in Makarchuk's vehicle showed it was parked at a mall and then his physiotherapy clinic during the time he didn't respond to calls. e manager was aware of the physiotherapy appointment but couldn`t understand why his truck was at the mall most of the afternoon. Makarchuk explained that he had con- tacted three technicians near the physio- therapy clinic to see if they needed help so he could maximize the work he could do before leaving for the appointment, but they didn't need assistance. On March 8, the manager asked Makar- chuk to bring in his vehicle for a random inspection. e inspection found that the GPS unit in Makarchuk's vehicle had been disconnected. Makarchuk initially denied knowing there was a problem and then even- tually admitted he had disconnected the unit because it had been making a beeping noise that was loud enough that he couldn't hear people on his phone. He said he tried to reset it but it continued to make the noise, so he unplugged it while he completed his calls. He admitted he should have informed the manager about the problem but forgot about it over the course of the day. Makarchuk was suspended pending an investigation. e regional manager inter- viewed Makarchuk about the GPS unit and determined its disconnection was a violation of company policy. Since Makarchuk had opportunities to inform management of any problems with the GPS unit but didn't, the company believed he disconnected it to hide his location during the workday — which he did after GPS data showed he wasn't where he was supposed to be on multiple occa- sions. SC360 decided to terminate Makar- chuk's employment for breach of trust and company policy. Makarchuk fi led a complaint of unjust dis- missal.

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