Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2018 In the first few months of 2015, the owner was away at school and Atlantic's general manager was left in charge. During this time, Magdy was driving a forklift to the front of Atlantic's secondary building. When he stopped the forklift, he forgot to engage the emergency brake and when he jumped off, he bumped the gear shift, caus- ing the forklift to move forward and collide with the building. is resulted in dam- age to the siding and door of the building. Magdy told a few other employees who were around what happened and that he was go- ing to try to fix the damage. Magdy tried to fix the door and siding and felt that he did "an adequate job," but the door frame was dented and the door didn't close as well as before the damage. e general manager noticed the damage a short time later and, after some inquiry, a few of the employees told him that Mag- dy had caused the damage with a forklift. However, he didn't take any action and he apparently didn't inform the owner of the damage, nor did he talk to Magdy to get an explanation of the incident. Months later, in September 2015, the owner discovered the damage to the door. He began questioning employees about it, but the general manager said he wasn't sure what had happened. When the owner questioned Magdy about it, Magdy immediately admitted to breaking the door and that he had told other employees about it. e owner was upset that Magdy hadn't reported the damage to the general manager and told him the company wouldn't be paying for it — a first, since no employee had ever been required to pay for property damage before. Magdy was upset by the questioning and the owner's comments, as he already felt bad about the incident — which was why he had tried to fix the damage in the first place. He left work early that day — Sept. 30 — due to stress, and when he tried to return to work two days later, he had to leave after two hours because he developed a migraine headache. He remained off work thereafter on medical leave. Atlantic's policy was that employees must provide a medical note for absences due to illness "for five consecutive days or longer." Magdy told the office manager on Oct. 6 he would provide a note the follow- ing week, but he didn't. e general man- ager contacted Magdy on Oct. 27 to remind him to provide a doctor's note. Later in October while Magdy was on medical leave, the owner saw Magdy's ve- hicle several times parked at a local garage owned by a friend of Magdy's. On another occasion, he passed Magdy driving a tow truck owned by the same garage. Wonder- ing if Magdy was working there while he was supposed to be on medical leave, the owner sent a friend to the garage. e friend reported that Magdy was there wearing the coveralls he normally wore while working for Atlantic. On Oct. 27, the owner saw Magdy's car parked at the garage twice and when he stopped in, he saw Magdy working at a bench in the garage. He confronted Magdy, who told him he was "trading off on some things" and he wasn't being paid. He also said his medical leave was for mental is- sues, not physical ones, but the owner said he hoped Magdy was happy working there because he was no longer working for At- lantic. Magdy's employment with Atlan- tic was immediately terminated for lying about causing property damage with the forklift, not providing a doctor's note for his medical absence as per company policy, and working for another employer while on medical leave. Magdy provided a doctor's note on Nov. 5 stating he was off work for medical rea- sons from Oct. 5 to 19. He subsequently filed a complaint seeking payment in lieu of notice under the Nova Scotia Labour Stan- dards Code. e board found that when Magdy caused the property damage with the forklift, the general manager didn't act as if it was a seri- ous violation of company policy and didn't follow up with Magdy. In addition, the gen- eral manager gave the owner the impression Magdy had lied about it, but Magdy had told other employees — who had informed the general manager — and immediately admit- ted to it when the owner asked him about it. Magdy also took the initiative to try to fix it. As a result, this was not misconduct war- ranting discipline, the board said. "(Magdy's) failure to immediately report the damage to the door after it was struck by the forklift was condoned by (the gen- eral manager) for four or five months," the board said. "If any discipline was to be car- ried out, it was required to be carried out contemporaneously with the events that gave rise to the discipline or within a rea- sonable time of the failure to report coming to the attention of (the general manager). e employer cannot in fairness rely on matters concerning which it took no action as grounds for discipline or termination, months later." As for the doctor's note, the board noted that Magdy took a long time to provide one — not until after his termination — but, while the company's policy required a doc- tor's note, the policy didn't say that a failure to provide one would be grounds for dis- cipline. ere was no evidence that Magdy was ever warned that failure to provide a note could lead to his termination or any past incidents where that was the case, said the board. e board also found that all of the owner's observations of Magdy's vehicle at the garage and wearing coveralls were circumstantial and not proof of him working there, particularly since Magdy was friends with the owner of the garage. In addition, Magdy denied working as an employee at the garage while not denying he was doing tasks that required wearing coveralls. Regardless, even if Magdy was employed at the garage on a causal or part- time basis while on medical leave and it constituted wilful misconduct, it was only one instance of misconduct for an employee with nine years of good service, said the board. e board determined that Atlantic did not have grounds to terminate Magdy's em- ployment for cause and ordered Atlantic to pay Magdy four weeks of statutory pay in lieu of notice under the Labour Stan- dards Code. See Magdy and Atlantic Truck & Equipment Repair Ltd., Re, 2017 Car- swellNS 675 (N.S. Lab. Bd.). Canadian Employment Law Today | 7 More Cases General manager was aware of damage but didn`t tell owner « from JUST CAUSE on page 1 CREDIT: HANS ENGBERS/SHUTTERSTOCK

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