Canadian Employment Law Today - sample

6 | May 23, 2018 Canadian HR Reporter, a Thomson Reuters business 2018 Cases and Trends Unsupervised worker had no opportunity for observed improvement « from DISMISSAL on page 1 way conditions to pilots, inspecting aircraft after landing and before takeoff, refuelling aircraft, and managing activity on the tar- mac during the loading and unloading of air- craft. He and other operations technicians were the first line for emergency response at the airport and at the start of the day, the operations technician was often the only employee onsite. Roy was hired in December 2007 as a ramp tech and after several months was pro- moted to the position of operations techni- cian. Because the job involved inspecting the runways and airport grounds using the air- port's main service truck, the job description noted that "a valid driver's licence" and "a clean driver's abstract" were necessary con- ditions of the job. His annual performance reviews were generally positive and Roy had a few verbal reprimands but no formal disci- pline on his record. On May 19, 2017, Roy drank more than he had planned to while out on the town during off-duty hours. He realized he was probably too impaired to drive home, so he decided to sleep it off in his car. A police officer found him asleep behind the steering wheel with the keys in the ignition and administered a sobriety test. Roy failed the test and the offi- cer gave him a notice that his driver's licence was suspended for seven days. e next morning, Roy's parents drove him to work. He texted his supervisor at 5:25 a.m. to report his licence suspension, ex- plaining how it happened and stating that he was in a predicament for the next few days. He asked a co-worker who was working as a ramp agent that morning to drive the ser- vice truck for the runway inspection and Roy was able to complete the inspection and its required form. Directive not followed When the supervisor arrived at work, he told Roy not to drive any vehicles at the air- port, including the "baggage tug" — a small tractor used to haul trailers of passenger luggage — during his licence suspension. e supervisor also assigned Roy alternate duties, such as work on the ramp where another employee operated the baggage tug. e supervisor shadowed Roy over the course of the day to make sure he didn't drive any motorized vehicles. On May 23, Roy signed a progressive dis- cipline form acknowledging that he wasn't permitted to operate any motorized vehicles on airport property and further disciplinary actions, up to and including dismissal, could follow after the matter was "discussed at the executive level." e next day, the airport's executive di- rector observed an Air Canada plane on the tarmac being loaded with luggage and was surprised to see Roy driving the baggage tug. e day after that, May 25, the executive director asked Roy's supervisor to check se- curity video of the tarmac, which confirmed that Roy had been driving the baggage tug. ey decided that this was a serious breach of a "clear working condition" and was a safety risk around the aircraft — which was especially concerning since most of his job involved working on his own and unsuper- vised. It also came out later that the employ- ee who Roy claimed drove the service truck during the May 20 runway inspection said he hadn't done so. ey decided Roy should be dismissed. ey summoned Roy to the executive di- rector's office and confronted him with the video surveillance. Roy didn't deny he drove the baggage tug and didn't offer an explana- tion — however, he said he didn't recall it be- cause when he worked he was on "auto pilot" and the directive not to drive hadn't entered his mind as he set about his usual work. ey didn't accept this explanation and Roy was dismissed for "failure to comply with condi- tions imposed on you due to the suspension of your driver's licence." Roy didn't accept the dismissal and filed a complaint of unjust dismissal under the Canada Labour Code with Human Re- sources and Skills Development Canada. He argued he had been a good, reliable worker for 10 years and didn't deserve dismissal for breaking what was essentially an in-house rule, especially since there were past exam- ples of vehicles with air brakes at the airport being driven by employees who weren't li- cenced to do so. e adjudicator found that having a valid driver's licence was "a fundamental charac- teristic of his job description," but it wasn't the "true and core reason for his dismissal" — in fact, the airport accommodated Roy's licence suspension by assigning him alter- native duties that didn't involve driving and Roy's supervisor spent the first day of the suspension shadowing him in case Roy faced a situation where driving a vehicle was nec- essary. Instead, Roy was dismissed because he didn't follow a directive given to him that he not operate motorized vehicles at the air- port during the licence suspension. "e employer, upon learning of the sev- en-day driving suspension, reacted fairly and reasonably," said the adjudicator. "If (Roy) had co-operated and faithfully and properly respected his directions and performed his assigned functions for seven days it would have ended the matter, in all probabilities. But he did not." e adjudicator didn't accept Roy's expla- nation that he was on "auto pilot" and didn't realize he was disobeying the directive, as "the law presumes that people act volun- tarily" and Roy didn't provide any evidence that satisfied such an excuse. It was just an attempt to "shed responsibility," said the ad- judicator. However, the adjudicator also found that the airport didn't follow progressive disci- pline. e progressive discipline form that Roy signed stated that "further disciplinary actions may follow," including up to and in- cluding dismissal. However, progressive dis- cipline is supposed to allow an employee to recognize his misconduct and an opportu- nity to correct it. Roy had a good record, but there wasn't opportunity for management to observe his conduct since he often worked unsupervised. e decision to terminate his employment after his first disciplinary no- tice was "a sudden and impulsive gesture," the adjudicator said. e adjudicator determined that since the airport didn't have "a practical method of oversight" to allow Roy a chance to improve, it decided to fire him instead of going the progressive disciplinary route. As a result, Roy was unjustly dismissed. However, the adjudicator considered Roy's disobedience of a management direc- tor and dishonesty in trying to cover up the fact he drove the service truck as damaging the employment relationship. erefore, in- stead of reinstating Roy, the adjudicator or- dered the airport to pay Roy damages equal to 10 months' wages plus 18 weeks' wages for severance pay, less any earnings from other employment or payments Roy had already received from the airport. For more information see: • Roy and Northern New Brunswick Airport Inc., Re, 2018 CarswellNat 1404 (Can. Lab. Code Adj.). WEBINARS Interested in learning more about employment law issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as navigating benefits during the notice period, discipline and dismissal for off-duty conduct, Ontario's employment standards changes, and diversity in the workplace. To view the webinar catalogue, visit cpdcentre.ca/hrreporter.

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