Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2018 breached his fiduciary duty to the casino by failing to disclose his conflict of interest to the board of directors and the band, which was a contravention of the OBCA. is, along with the lack of consideration the ca- sino received for the contract's termination provision, made Waddilove's employment contract unenforceable, said the court. e court also found that while Wad- dilove's job performance deteriorated about one year after the change in the board of di- rectors — he was often late, refused to fol- low orders from the board, and didn't report daily to the bookkeeper — the casino didn't follow its own progressive discipline policy, which stipulated informal coaching followed by a formal verbal warning, a formal written warning, and a final written warning before reaching the point of termination. Despite "numerous concerns" with Waddilove's per- formance, the board didn't give him warn- ings in accordance with the policy — three written warnings and one informal verbal warning in the summer of 2015. Without proper notification that his job was in danger and the opportunity to improve, Waddilove could assume he was doing a satisfactory job and the casino didn't have cause to terminate his employment, said the court. e court determined that the Paradise casino was free to terminate Waddilove's employment without cause because his con- tract was unenforceable, but it had to provide proper notice. Since Waddilove had worked for six-and-one-half years with the casino, the court found he was entitled to six-and- one-half months' pay in lieu of notice, minus the two months' wages he received upon ter- mination — a total of $18,000. For more information see: • Waddilove v. 1748960 Ontario Limited, 2018 CarswellOnt 564 (Ont. S.C.J.). ness is strictly prohibited." is included "any detectable amount" of drugs. e policy also stated that Magna Services would "invoke immediate disciplinary ac- tion leading up to and including dismissal" if any employee was found to have violated the policy. e worker was called into work at an off- shore oil rig on Jan. 27, 2014. However, secu- rity for the oil rig found a piece of aluminum foil in his jeans pocket that contained a small amount of marijuana. e worker said he didn't know the drug was in his pocket, but admitted he occasionally used it recreation- ally. A mandatory drug test followed with a positive result. Magna Services investigated and termi- nated the worker's employment on March 26, 2014, for non-compliance with its drug and alcohol policy. e union grieved the dismissal, but an arbitrator found that the worker probably was aware that he had the marijuana and had simply forgotten it was in his pocket. So while he didn't knowingly bring the marijuana to work, he was still "in possession" of it, which was a violation of the policy. e union appealed and the Newfound- land and Labrador Supreme Court — as re- ported in the April 12, 2017, issue of Canadi- an Employment Law Today — determined that the arbitrator's — and Magna Services' — decision that the worker violated the drug and alcohol policy despite not being aware he had a small amount of marijuana on him was unreasonable. ough the worker had physical possession of marijuana while en- gaged in company business, he didn't know he did until he was scanned by security. Since he didn't know he had the marijuana with him, he didn't intend to violate the pol- icy, said the court in overturning the arbitra- tor's decision. Magna Services, through the Terra Nova Employers' Organization, appealed the court's decision. e Newfoundland and Labrador Court of Appeal noted that the arbitrator initially took the view that Magna Services' drug and alcohol policy warranted a strict liability ap- proach — "doing of the prohibited act is suf- ficient to establish non-compliance with the policy." e worker's intent wasn't important to the fact of whether the policy had been violated or not. On the appeal, the provincial Supreme Court adopted a different perspec- tive and found intent must be incorporated into the interpretation of the policy, the Court of Appeal said. However, the Court of Appeal found that in adopting a different perspective, the lower court didn't assess the reasonable- ness of the arbitrator's initial approach to the policy before doing so. is, the appeal court said, was an error, and the arbitrator's interpretation of the policy — using a strict liability approach – was within the realm of reasonableness. With the arbitrator's approach in find- ing the worker strictly liable for violating the policy considered to be reasonable, the Court of Appeal found that the worker was required to establish that he had taken all reasonable care to ensure he didn't breach the policy. Since the arbitrator found that the worker probably knew he had marijua- na in his jeans pocket before and just for- got, it led to the conclusion that the worker should have realized there was a chance the drug was in his pocket due to his past use and posession of the drug on his person. Knowing Magna Services' drug policy, the worker should have carefully checked his pockets before going to work, the Court of Appeal said. Since the worker didn't check his pock- ets even though he used marijuana recre- ationally, the Court of Appeal determined the worker didn't take all reasonable care to ensure he didn't breach his employer's drug policy and therefore didn't meet the standard of a reasonable person in similar circumstances. e appeal court overturned the lower court's decision and restored the arbitrator's decision that Magna Services had grounds to terminate the worker's em- ployment. See Terra Nova Employers' Or- ganization v. Communications, Energy and Paperworkers Union, Local 2121, 2018 Car- swellNfld 17 (N.L. C.A.). Canadian Employment Law Today | 7 More Cases Possession not intentional but result of carelessness « from COURT OF APPEAL on page 1 Casino manager not warned his employment was in jeopardy « from EMPLOYER on page 3 Employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog includes a tool for readers to offer their comments, so discussion is welcome and encouraged. The blog features topics such as dismissing employees with disabilities, workers' compensation for stress, and managing employee vacation time. You can view the blog at www.employmentlawtoday.com.

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