Canadian Employment Law Today

January 3, 2018

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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©2018 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 Were the suspensions reprisals against the worker? OR Were the suspensions legitimate discipline? IF YOU SAID the suspensions were le- gitimate, you're right. e Ontario Labour Relations Board found that the October suspension was related to Ichim's "repeat- ed disparaging comments about his col- leagues," violating company policy with the food container and failure to lock out the product saver while working on it. ese in- stances of misconduct warranted discipline and were not related to any safety concerns he had voiced, said the board. e board also found there was no causal connection between the fi ve-day suspen- sion in March 2016 and any safety com- plaint, as Nestle once again had legitimate reasons for discipline — acting aggressively towards the team leader, inappropriate racial comments, and failing to follow di- rection in how to replace the light fi xture. Again, this suspension was not related to any safety concerns Ichim raised regarding the ceiling. e board dismissed Ichim's complaint, fi nding the two suspensions were not repri- sals for his expression of safety concerns. See Ichim v. Nestle Confectionery, 2017 Carswel- lOnt 14455 (Ont. Lab. Rel. Bd.). Worker suspended twice, blames expression of safety concerns THIS INSTALMENT of You Make the Call features a worker who was suspended twice after he came into confl ict with management over potential safety issues. Alexandru Ichim was an electrical elec- tronic technician for Nestle Confectionery at its facility in Toronto. He performed pre- ventative maintenance on the facility's ma- chinery and responded to calls dealing with breakdowns or other mechanical issues. He was part of a team of similar technicians who were assigned work by a lead hand. On Oct. 15, 2015, Ichim was assigned to work on the motor of a product saver ma- chine. e maintenance team leader went to check on Ichim to see how he was doing and found the motor replaced but not recon- nected. e motor connection was open and the panel wasn't locked out — a safety risk and violation of Nestle's lock-out/tag-out procedure. e maintenance team leader put a lock and tag on the machine and when he found Ichim, he asked him why it wasn't locked or tagged out. Ichim said he didn't think he needed to follow procedure and became belligerent, adding that he needed schematics and help from someone to reconnect the motor. e lead hand told the team leader that the pro- cedure wasn't complicated and the latter told Ichim both the head hand and another technician were available to help. Ichim then went on a break. After his break, Ichim returned to the factory fl oor with an open food container, which wasn't allowed because it could con- taminate the production of Nestle's prod- ucts. e team leader told Ichim to put the food away and Ichim complied with the order. Soon after, however, Ichim became angry at his colleague's statement that re- connecting the motor was simple and could be done without schematics. He responded by remarking that two of his colleagues were "Chinese speaking." e team leader tried to calm Ichim down and found the schematics online. Ichim ob- tained the schematics and connected the motor about one hour later. Ichim was then suspended for three days and given a letter indicating he had been suspended for failing to lock out the product saver while working on it, engaging in dis- respectful conduct, failing to complete the motor replacement job within a reasonable amount of time, and bringing food onto the production fl oor. On March 3, 2016 the metal detector on one of the production lines was setting off false alarms. Ichim was asked to try to fi x the problem, but Ichim became embroiled in an argument with a mechanic. e team leader was called over and Ichim responded by aggressively asking — in front of several employees — why the team leader was there and who called him, saying the team leader didn't deserve to be there, and adding that the team leader didn't know anything and shouldn't be a team leader. It became appar- ent the belt needed to be cleaned and there was no safety risk. e next day, Ichim was asked to replace a light fi xture that required a second em- ployee to secure the area beneath the light before starting the job. However, Ichim went ahead and replaced the light fi xture by him- self, saying he didn't think the fi xture needed to be replaced but it would be fi ne as long as someone didn't walk on the ceiling and cause it to collapse — he had expressed concerns over the construction of the ceiling a month earlier. e team leader suspended Ichim for fi ve days for not following the safety plan. Ichim fi led a complaint, saying both of his suspensions were reprisals under the On- tario Occupational Health and Safety Code. He argued he took safety precautions by not connecting the motor without schematics, he brought food onto the production fl oor because of an emergency, and established procedure for the light fi xture was to cordon off the area, not have a second person clear it out.

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