Canadian Employment Law Today

February 14, 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: $308 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 Hoath resign of his own accord? OR Was Hoath constructively dismissed? IF YOU SAID Hoath resigned of his own accord and wasn't constructively dismissed, you're right. e Ontario Labour Relations Board found that F&P's response to the inci- dent with the rework welder was reasonable and did not create a hostile work environ- ment for him. e decision to send Hoath home pending further investigation was intended to help cool things down and en- sure the safety of the employees involved, and not paying him for the time he wasn't at work was normal company practice. Hoath was brought back the next day and issued the lowest form of discipline after inter- viewing all involved. e board noted that the issue was that Hoath didn't agree with the discipline. Had he done so, it would have disappeared from his record after a certain amount of time. However, he continued to raise the issue with upper management in what the com- pany considered a disrespectful tone, which unsurprisingly brought another warning. Other actions — such as granting Hoath's request to move lockers and his request to transfer — demonstrated a willingness to co-operate with Hoath and keep him as an employee. In addition, Hoath continued to work for more than two months past when he claimed the workplace was intolerable, said the board. e board agreed with F&P that Hoath's resignation was a "gigantic overreaction" and dismissed his constructive dismissal claim. For more information see: • Hoath v. F & P MFG Inc., 2018 Carswel- lOnt 287 (Ont. Lab. Rel. Bd.). Constructing a dismissal out of discipline? THIS INSTALMENT of You Make the Call features an Ontario worker who claimed he was constructively dismissed. Mark Hoath worked as a production asso- ciate for F & P MFG, a manufacturer of auto- motive parts, at its plant in Tottenham, Ont. His job duties included working on diff erent production lines in the factory over eight- hour shifts. F&P hired Hoath in May 2002. In December 2015, Hoath was assigned to inspect parts being made for the Camaro model of cars. He was told F&P had fallen behind in production, so he should disre- gard the posted operating standards. Hoath wasn't comfortable performing inspections with those instructions, so he requested a transfer to another department. One week after the transfer request, Hoath got into an argument with a welder. Normally, if any part didn't meet require- ments, they were returned to the rework welder for repair. However, since he had been told there wasn't time to repair parts, Hoath was placing all parts in the reject bin. e welder objected to this and insisted the parts be returned to her for repair. Hoath claimed the welder kept "nagging and harassing" him about the parts, even though he had explained why they were going into the reject bin. Hoath told her he would get into trouble and to take it up with the supervisor. e welder went into the production offi ce and when she came back, Hoath apologized if she thought he had been yelling at her. Hoath was called to meet with his supervi- sor, the HR co-ordinator, and the manager. He admitted that he may have raised his voice and reiterated his disagreement with not following the operating standard. He de- nied noticing if the welder was upset or cry- ing, but said it may have been because she was letting bad parts go and no one told her. e HR co-ordinator decided to send Hoath home without pay for the rest of the day because he was agitated. Hoath returned the next day and F&P continued the inves- tigation, including a second interview with Hoath two days later. Hoath explained that the welder had nagged him for 20 minutes before he responded, and if he had a louder voice, it was because he was male. On Jan. 7, 2016, F&P gave Hoath a written warning for the incident stating that he must not be involved in similar behaviour again. e written warning was the fi rst of a four- stage counselling policy. Soon after, Hoath's transfer came through. Hoath wrote to F&P's president in early February claiming he was treated unprofes- sionally. He said the investigation and writ- ten warning were wrong and asked that his record be cleared or he would resign. e president initially said they would meet, but later had to delay the meeting since he would be away, which Hoath viewed as "passive- aggressive" harassment. Hoath wrote a letter to upper management criticizing the president and requesting fair payment for the day he was sent home early. He also requested a locker change to be far- ther away from his supervisor and manager, who he felt had treated him unfairly. e locker change was approved but he was told the decision to send him home was reason- able and he would receive discipline if he continued to address company management "in the tone you have used" in the letters. Hoath felt the company was trying to hide the fact he had received an unpaid suspen- sion for the half-day he was sent home. On April 19, 2016, he tendered his resignation. He then claimed he was constructively dis- missed because of "unbearable" harassment from F&P management, saying he was en- titled to termination and severance pay.

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