Update: 700 Employees at Pearson International Airport Go On Strike By: Nicolas Di Nardo As noted in our blog published earlier this week, 700 employees have gone on strike at Toronto’s Pearson International Airport. The 700 employees represented by the Teamsters union went on strike on Thursday night, after rejecting an offer from their employer, Swissport. Luckily, the Greater Toronto Airports Authority has a contingency plan in place, however no details were provided. Airlines have also said they were prepared if their workers decided to join the picket line. Swissport is connected to 30 of the 74 airlines at Pearson which include airlines such as Sunwing, Air Transat, Air France and British Airways. The proposal presented to employees by Swissport was rejected by a 95 per cent margin. The union believes the contract is unfair to its workers, something they demonstrate as they march with signs and chant “respect” out front of Pearson Airport. So far it is unclear how long this will last, but if you’re trying to catch a plane in the coming days, you may want to check to make sure your airline is not one of those thirty airlines effected. For more details on the strike, please read our blog that goes into more detail on this matter. Devry Smith Frank LLP (“DSF”) is a full service law firm in Toronto that has experienced Labour Law Lawyers that can assist employers in the event of union organizing, bargaining and negotiations, and strikes. If you require a Labour law Lawyer, contact DSF’s Labour Lawyers today, or call our office directly at 416-449-1400. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment LawJuly 28, 2017June 22, 2020
Possible Strike at Pearson Airport Beginning Thursday By: Nicolas Di Nardo Already checked in for your flight tomorrow? Flying out of Pearson by the end of the week? You better make sure you continuously check your flight time, because your flight could face some delays. Why, you may ask? Pearson’s ground crew for 30 airlines may be going on strike tomorrow, with the potential to delay flights. Monday, the union representing Swissport workers (approximately 700 employees) filed a 72-hour strike notice and will ask its members to shoot down the company’s final offer. Swissport believes their final offer is “fair and competitive, and expressed disappointment that the union may strike.” The union has not yet given members the reason why they are to reject this apparent fair and competitive offer. All workers that will be going on strike as early as Thursday night include: Baggage Handlers Cargo Handlers Cabin Cleaners The union is expressing their concerns with: Company’s decision to hire 250 temporary workers – without significant change in workload Union was only given a day’s warning before they began hiring the workers Training duration temps receive (3-4 days rather than 3-4 weeks) Don’t believe these workers can do their job with no experience and poor training They also claim that Swissport hired those 250 workers to put leverage on workers during the current round of contract negotiations. Which they believe is sacrificing airport safety. Swissport’s response to the hiring of temporary workers as a way to respond to the summer rush, something they are permitted to do under the collective agreement. As a result, the Teamsters have filed a formal complain with the Canadian Industrial Relations Board. Specifics could not be discussed due to the upcoming CIRB case. It will be interesting to see how many workers do go one strike, considering it has been mentioned that the union’s members don’t want to strike. Nevertheless, the Greater Toronto Airports Authority has a contingency plan in place in the event of a strike or labour disruption by Swissport workers. Devry Smith Frank LLP (“DSF”) is a full service law firm in Toronto that has experienced Labour Law Lawyers that can assist employers in the event of union organizing, bargaining and negotiations, and strikes. If you require a Labour law Lawyer, contact DSF’s Labour Lawyers today, or call our office directly at 416-449-1400. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Labour LawJuly 26, 2017June 22, 2020
Failure to Pay an ESA Order Resulted in Jail Time and a $20,000 Fine By: Michelle Cook, Summer Law Student On June 6, 2017, a Mississauga employer received a jail sentence of 30 days plus an additional fine of $20,000 after failing to pay an order issued by a Ministry of Labour employment standards officer. The order required him to pay about $140,000 in outstanding wages to his 43 workers, many university students. While jail time is rare for Employment Standards Act (ESA) violations, this case shows that the courts are beginning to take a stronger punitive approach to large violators of workplace laws. This comes just after the Ministry of Labour has promised to ramp up enforcement last week, when Premier Kathleen Wynne and Labour Minister Kevin Flynn proposed updates to Ontario’s labour and employment laws, including increased fines for workplace violations. If the legislation is passed, it will add up to 175 employment standards inspectors, enabling inspectors to award damages and interest on unpaid wages. The ministry has failed in the collections process in previous years. Ranging from 2009 to 2015 more than one-third of stolen wages were never recovered, meaning that the victims of wage theft across Ontario have lost out on $28 million. However, since 2015, Ontario employers facing prosecution for workplace violations have risen by more than 40 per cent. Peter David Sinisa Sesek ran Academic Montessori in Brampton and WISE Summer Camp in Mississauga. In addition to the 30-day sentence and an order to pay $127,000 in outstanding wages to former employees – most of which were university students whose individual claims ranged from $700 to $12,000— he was also fined $20,000 for failing to comply with the ministry’s order to pay, which was issued in 2015. The outstanding wages dated all the way back to 2014. His sentence is very uncommon. Over the past two decades there have been fewer than 10 jail sentences for ignoring orders to pay, with the most recent sentence in 2016 only imprisoning the accused boss for one day. The maximum penalty for ignoring orders to pay is one year of imprisonment. In summary, Sesek was convicted under the Employment Standards Act as well as the Provincial Offences Act. Any person who fails to comply or is convicted under the ESA can be: Fined up to $50,000 or imprisonment of up to 12 months, or both; If a corporation, the fine may be up to $100,000; For a corporation with a previous conviction, the fine may be up to $250,000; and If there is more than one previous conviction the fine may be up to $500,000. Also noted in the court bulletin, the court imposes a 25 per cent victim fine surcharge, which is required by the Provincial Offences Act. The surcharge goes to a provincial government fund that assists victims of crime. The Changing Workplaces review has hinted that the maximum penalties for violations of workplace laws will be increasing in the future. Employers should be careful to make sure that they are in compliance with the law and that ESA orders are dealt with seriously and promptly. Devry Smith Frank LLP is a full service law firm that has an experienced group of lawyers within our employment and labour law groups. If you are in need of representation, please contact one of our lawyers today or call us directly at 416-449-1400. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment LawJune 29, 2017June 22, 2020
Income Earned by Wrongfully Dismissed Employees No Longer Automatically Deducted Under the Duty to Mitigate The duty of wrongfully dismissed employees to mitigate their damages is no longer as clear-cut as it once was. Notice periods are seen as an amount of time, or a level of compensation, to assist a dismissed employee to find comparable work. Previously, lawyers made the assumption that any income gained by an employee during an employment notice period was to be automatically deducted from the amount an employee would be entitled to, due to the fact that the employee successfully mitigated the damages that their previous employer was responsible for. However, in Brake v PJ-M2R Restaurant Inc, the Court of Appeal declined to lessen the wrongful dismissal damages an employee was entitled to because of income earned from other employment during the notice period. The employee, Esther Blake, was awarded more than $104,000 for a 20-month notice period due to wrongful dismissal. The defendant, PJ-M2R Restaurant Inc, is a holding company that owns franchised McDonald’s in the Ottawa area. Esther worked as a manager at one of the McDonald’s locations for 25 years until she was wrongfully dismissed. While working at McDonald’s, Esther also worked a part-time job at Sobey’s as a cashier. When Esther was dismissed from McDonald’s, she continued to work at Sobey’s as she did before but expanded her hours there as she was no longer working full-time at McDonald’s. The Court of Appeal declined to see the Sobey’s employment as income from mitigation as she would have continued to work there part-time regardless of her status at McDonald’s. Also of note is Court of Appeal Justice Kathryn Feldman’s concurring decision in this case. The lower court judge determined that $600 that Esther received from Home Depot during the notice period should also not be deducted as it was “so substantially inferior” to her managerial position at McDonald’s (para 24). While Justice Feldman did not use the same wording, she reiterated that employees are entitled to turn down jobs that are not comparable, without having the potential income from that job deducted for a failure to mitigate losses. Using that reasoning, an employee should not be penalized when they choose to accept the job that they were entitled to turn down. Justice Phillips of the Court of Appeal did not deduct this income either but stated it was due to the lack of clarity regarding the income. The clear implication of this case is that employment lawyers will need to prove not only the amount of income an employee earned during the notice period but the nature of the work that income came from. With a changing economy and the rise of non-standard work, it will be interesting to see how the Court of Appeal treats mitigation efforts as comparable standard employment becomes more elusive. Devry Smith Frank LLP is a full-service law firm that has experienced lawyers within our employee and employment law group. If you are in need of representation, please contact one of our lawyers today or call us directly at 416-449-1400. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment LawJune 22, 2017June 24, 2020
General Electric Workers Exposed to Toxic Chemicals for Decades Between 1945 and 2000, General Electric’s factory in Peterborough was the epicentre for many work-related illnesses among employees and retirees, a study of chemical exposures at the plant reveals. This, however, is nothing new. The community has been saying this for quite some time, and the 173-page report confirms this. GE’s plant workers built household appliances all the way to diesel locomotive engines and fuel cells for nuclear reactors. The workers were exposed to more than 3,000 toxic chemicals in the process, some of which include 40 to be cancer-causing. Workers were exposed to these chemicals at levels hundreds of times higher than what is now considered safe, says the report. General Electric allowed workers in the past to handle the toxic substances without protective gear, which they were rarely offered. As they were paid by the piece and not by the hour in the 1980s, there was an incentive to cut corners. Seeing as about 500 lbs. of asbestos was used daily and workers did not have respiratory protection or proper ventilation, it is no wonder these employees have had trouble with their health after being exposed. The managers also knew the harm that these chemicals can cause to people without the proper protection, as early as the 1920s and 1930s. The lead was another huge component that circulated the plant. Workers used about 40,000 lbs. in a week to produce PVC pellets until the 1980s, and also experience daily exposure to: Solvents Welding Fumes Epoxy Resins PCBs Beryllium Uranium Daily exposure to the above without proper protection is extremely dangerous. However, around 2000 is when safety measures were being mandated, and since then, GE’s plant is a smaller operation, and spotless. The report will be used to support occupational disease claims that were previously denied by Ontario’s Workplace Safety and Insurance Board (the “WSIB”). Hundreds have filed compensation claims, and unfortunately, Ontario’s worker compensation system does not allow employees to sue their employer when they have been given the ability to claim benefits when they are injured or fall ill because of work. The WSIB has been given 660 compensation claims from GE workers since 2004, with 280 accepted, more than half withdrawn, abandoned or rejected because of insufficient evidence that the conditions were work-related. “Workers that suffered from working within the plant were forced, for many years, to provide proof of their working conditions, only to be told this is anecdotal,” said Sue James, whose father worked at the plant for 30 years and died of lung and spinal cancer, believed to have been caused by exposure to the chemicals used in GE’s plant. A former employee believes he developed colorectal cancer because he worked more than 22 years under asbestos-wrapped pipes, which would occasionally shed while he worked. This employee, Roger Fowler, was one of the former employees who worked on the report. With this investigation drawing some attention, the provincial labour ministry announced it will be setting up an occupational disease response team by the end of the year to focus on chemical exposure prevention and help sick workers file compensation claims. 11 retirees worked as advisers on this report. Together, this committee along with health researchers Bob and Dale DeMatteo, interviewed over 75 former workers to gather information on working conditions and production processes. The data collected from these workers was coupled with data from labour ministry inspection reports, joint health and safety committee minutes, company memos, industrial hygiene literature and other documents, gathered by the union. At Devry Smith Frank LLP we provide a full range of services to suit any need. If you are seeking information or representation for a similar situation, please contact the lawyers of our Health and Safety and Employment Law Teams today. If you require more information please call us today at 416-449-1400. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment Law, Human Rights LawMay 19, 2017June 23, 2020
Off-Duty Conduct: Can you be Terminated over Tweets? Toronto Arbitrator Elaine Newman says you can. On November 12, 2014, the Ontario Labour Relations Board upheld the City of Toronto’s dismissal of Matt Bowman, a firefighter with 2.5 years of service, for inappropriate use off-duty use of his Twitter account. Bowman’s Twitter account included a picture of himself posing in a Toronto Fire Services (“TFS”) uniform. Three of his tweets, published in an article by the National Post, read: “Reject a woman and she will never let it go. One of the many defects of their kind. Also weak arms.” “I’d never let a woman kick my ass. If she tried something I’d be like hey! you get your bitch ass back in the kitchen and make me some pie!” “The way to a woman’s heart is through anal.” When the employer became aware of the offensive tweets, they suspended Bowman with pay pending an investigation. Bowman produced a letter of apology for his first interview with his employer and later completed a course in sensitivity training. During the course of the employer’s investigation, further offensive tweets were discovered. The tweets were found to be overtly racist or demeaning to women, ethnic minorities, homeless persons and persons with disabilities. The employer alleged that Bowman’s tweets violated the employer’s human rights and social media policies and guidelines and harmed the reputation of TFS. TFS had recently launched a program through which is intended to increase the recruitment of female firefighters and those that represent the diversity of Toronto’s population. In her analysis, Arbitrator Newman recited the test established in Re Millhaven Fibres Ltd. v. Atomic Workers Int’l Union, that provides that in order to uphold a dismissal on the basis of just cause arising out of off-duty conduct, there is an onus on the employer to prove that: the conduct of the employee harms the employer’s reputation or product; the employee’s behaviour renders the employee unable to perform his duties satisfactorily; the employee’s behaviour leads to refusal, reluctance or inability of the other employees to work with him; the employee has been guilty of a serious breach of the Criminal Code and thus rendering his conduct injurious to the general reputation of the employer and its employees; places difficulty in the way of the employer properly carrying out its function of efficiently managing its works and efficiently directing its working forces. Arbitrator Newman confirmed that the test requires an employer to prove any one of the above-noted criteria. Newman noted that, over the past 4 decades since the Millhaven test was devised, cultural awareness and sensitivity in Canada has grown, along with the diversification of its communities and workplaces. As such, she expanded the fourth branch of the Millhaven test above to include a serious breach of human rights policies or the Human Rights Code. The question to be asked is this: Would a reasonable and fair-minded member of the public, if apprised of all the facts, consider that Bowman’s continued employment would so damage the reputation of the employer so as to render that employment untenable? Arbitrator Newman considered Bowman’s apology and candour at length. She found that he was not forthcoming, disclosed information selectively and was not fulsome in many of his responses. She also found that he was not candid or cooperative during the employer’s investigation. Arbitrator Newman also considered the severity of Bowman’s conduct: she found that Bowman’s comments violated a number of fundamental workplace policies, that he promoted forms of discrimination intentionally among his followers and recklessly made this promotion available to the general public. She noted that his conduct was not an isolated incident, but that it was a course of conduct and took place over a period of about two years. Arbitrator Newman found that actual damage to the employer’s reputation was caused by the National Post articles and their fallout and found potential damage has been caused to the employer’s ability to carry out its work, which includes implementation of its diversity initiative. In determining that dismissal was the appropriate penalty, in this case, Arbitrator Newman stated, “[Bowman] does not absolutely accept the proposition that his comments were offensive. He has said, repeatedly in his evidence, that ‘he can see how someone might consider them offensive.’ His words ring hollow. They do not reflect a real appreciation of the degree to which his comments offend.” The Arbitrator held that Bowman’s conduct harmed the reputation of his employer and impaired his ability to fulfill the complete range of responsibilities of a firefighter. She stated, “The job involves more than attending at a fire, or attending as the first responder when someone calls 911 for a medical emergency. It involves more than performing life-saving interventions that he has learned and practiced. The other part of the job, the part that I am not convinced he can perform to satisfaction, is the part that requires him to conduct himself in a way that brings honour to the uniform. I have to wonder if a deaf person, a woman in labour, a homeless person, a member of a visible minority group, apprised of his comments, would welcome this man into their home in a time of need.” Arbitrator Newman’s Award may be found here. What should employers take from this decision? the importance of implementing and maintaining human rights and social media policies in the workplace off-duty breaches of employers’ human rights policies or the Human Rights Code may be found to harm the employer’s reputation and be grounds for just cause dismissal certain types of employees, for example, firefighters, nurses and police officers may be held to a higher standard than other employees whose work is less intimate and does not involve serving the public or being in a position of trust Be careful what you tweet! Contact a member of the Employment Law group at Devry Smith Frank LLP to develop and update your workplace policies, including human rights and social media policies. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment LawJuly 17, 2016June 16, 2020
Seasonal Employees May Be Eligible For Severance Pay The holiday rush has ended and financial reports are in and layoff notices have been issued to some employees, so what about severance pay for seasonal employees? In Snow Valley Resorts (1987) Ltd. v. Barton and Director of Employment Standards, 2013 CanLII 8963 (ON LRB), the Ontario Labour Relations Board upheld an Employment Standards Officer’s decision that granted entitlement to severance pay to a seasonal employee. The Board also affirmed a notice of contravention and fine against the employer for failing to pay severance pay. Barton was employed from 1990 to 2011 by Snow Valley during the winter season. His contracts clearly stated that his employment was seasonal in nature and was for the current ski season only. Over 11 years, Barton worked a total of 80 months (6.7 years). Section 65(2) of the Employment Standards Act, 2000 provides: All time spent by the employee in the employer’s employ, whether or not continuous and whether or not active, shall be included in determining whether he or she is eligible for severance pay under subsection 64 (1) and in calculating his or her severance pay under subsection (1). In Ontario, if an employee has been employed for five years or more and the employer has a payroll of $2.5 million or more, then the employee is generally entitled to severance pay The Ontario Labour Relations Board found that Barton was entitled to severance even if his employment was seasonal in nature. Barton had worked non-continuously for more than 5 years. Under section 65(2), Barton was eligible for severance because all periods of employment were taken into account in determining if he had five or more years of service. In the end, he was not awarded the severance pay because he filed his ESA claim outside the six-month limitation period. With respect to termination pay, the Board did not award termination pay as it was found that Barton’s employment was seasonal. The Board found that seasonal employment is for a definite duration even if the contract of employment did not specify an end date. Under the ESA Regulation 288/01, employees employed for a definite duration or defined task are not eligible for termination pay. The same exemption does not exist for severance pay. Employers that hire seasonal employees or rehire employees with prior service need to be aware they may owe severance pay if the employee’s total service equals five years or more. An employee need not be full-time or a permanent employee to trigger severance entitlements under the ESA. Further, when a lay off lasts more than 13 weeks in a 20 week period under the ESA (or 35 weeks in a 52-week period if certain conditions are met), the employer will trigger a termination and severance pay if the employee is eligible. Snow Valley Resorts (1987) Ltd. v. Barton and Director of Employment Standards, 2013 CanLII 8963 (ON LRB)https://www.canlii.org/en/on/onlrb/doc/2013/2013canlii8963/2013canlii8963.html By Fauzan SiddiquiBlog, Employment LawFebruary 28, 2014November 24, 2020
Can Employers Terminate Employees While They are on Leave? This blog post was written by employment lawyer, Carrie Kennedy in response to the question: “Can employers terminate the employment of an employee while that employee is on pregnancy leave, parental leave, or any other type of leave?” Of course they can. However, doing so may be a costly decision. The Employment Standards Act, 2000 (the “ESA”), similar to the Canada Labour Code, provides that “upon the conclusion of an employee’s leave under this Part, the employer shall reinstate the employee to the position the employee most recently held with the employer, if it still exists, or to a comparable position, if it does not”. Despite this obligation on an employer to reinstate an employee when a period of leave ends, an employer may terminate that employee’s employment for a number of reasons including: a) the position no longer exists and there are no comparable positions to offer to the employee; b) the employer terminates the employment in compliance with the termination and severance requirements in the applicable legislation; or c) the employer has grounds to dismiss the employee that are completely unrelated to the fact that the employee is on leave. Both the Canada Labour Code and the ESA both have case law decided under them that clearly state that, while the legislation is designed to protect employees on leave, they are not designed to provide greater rights to employees who go on leave than to other employees. Although an employer may terminate the employment of an employee on leave, employers must be sure not to treat employees who are on leave more poorly than those employees who are not on leave. Often, an employee on leave will believe their rights or protections have been violated if dismissed while on leave and they will seek further compensation from the employer. The termination, therefore, even if part of a corporate reorganization, might come at quite a cost to the employer. In the recent case of Moday v. Bell Mobility Inc. 2013 CarswellNat 393, Moday, an 11 year employee of Bell Mobility, received a termination letter from Bell Mobility while she was on maternity leave. Bell Mobility argued that, due to downsizing, it had eliminated Moday’s job and all comparable jobs, so there were no comparable positions to which she could return. In this case, Bell Mobility had eliminated about 220 jobs in its reorganization. Although Bell Mobility offered Moday a severance and termination package that exceeded the requirements of the Canada Labour Code, she brought an action against Bell Mobility for wrongful dismissal. The arbitrator dismissed Moday’s complaint. It found that an employer may dismiss someone on leave when the employee’s job is eliminated and there are no comparable jobs to be offered, the right to be reinstated does not trump an employer’s right to reorganize, and being on leave does not put an employee in a superior position to other employees who also lose their jobs during a corporate reorganization. The downside to an employee who is terminated while on leave is obvious: the employee loses his or her job. The downside to an employer who terminates the employment of an employee while he or she is on leave is that it might be a very costly decision. The employer will be required to pay, at a minimum, the amounts set out in the termination and severance provisions of the applicable legislation. It will also likely have to pay legal fees if that employee brings a civil action against it for wrongful termination or makes a complaint against it before the Human Rights Tribunal. It is likely that an employer will either have to voluntarily pay an employee an amount that exceeds the minimum legislated standards in order to avoid litigation or it will be ordered to do so if unsuccessful in litigation. What this means for an employer is that, while it may technically act within the bounds of the law in terminating the employment of an employee on leave in certain circumstances, it may cost much more to terminate that employment compared to terminating the employment of an employee who is not on leave. For more information on Canada Labour Code, Employment Standards Act and Notice and Termination of Employees for Employers or if you need an employment lawyer, contact Carrie Kennedy or one of the employment law lawyers of Devry Smith Frank LLP, listed on our website by clicking on their name. By Fauzan SiddiquiBlog, Employment LawJune 17, 2013July 28, 2021
What Breach Of Trust In An Employment Relationship Is Too Small To Justify Dismissal? Employee of 36 years dismissed after stealing a pack of cigarettes, discharge upheld at arbitration. By: Michelle Stephenson, our law summer student A pack of cigarettes may not be too small a cause for termination, according to a Manitoba arbitrator. The discharge of a cashier (“the grievor”) by Canada Safeway for stealing a pack of cigarettes was upheld, even after he claimed that he never intended to steal them. The arbitrator had to decide whether there was cause for discipline, which turned on whether the grievor was telling the truth, and whether termination was the appropriate penalty. The grievor’s co-worker had begun to suspect that he was stealing cigarettes from work and, after confirming her suspicions, reported it, which led to an “integrity shop” investigation. After being left with extra cigarettes by the undercover investigator, the grievor put some away but claims he forgot about the other pack his apron, which he left with. He said he did not notice the other pack as he had a lot in his pockets, had spilled tea on his hands, and when he reached into the apron, only found the one pack. He was fired the following Monday, and the Union filed a grievance, claiming he did not steal the cigarettes and should be reinstated with full back pay and seniority. The credibility of the witnesses was significant in determining whether theft had taken place. In this case, the arbitrator found that the grievor’s story was not credible. The arbitrator found that the employees were generally aware of the importance of honesty to the employer, that theft would result in their dismissal, and that consumable products were never to be put in aprons. In contrast, the grievor claimed that it was normal practice for employees to put these items in their aprons. The grievor’s story and behaviour was found to be illogical and inconsistent. On the other hand, the employee who noticed his behavior was found to be credible. The arbitrator determined that the employee intentionally stole the cigarettes; however, it was recognized that theft should not necessarily result in dismissal. In Canadian Office and Professional Employees Union and Yellow Pages Group Co. 2012 ONCA 448, determining whether dismissal was appropriate required the balancing of the severity of the conduct with the severity of the penalty. The analysis is contextual, determining whether the employee’s misconduct is reconcilable with sustaining the employment relationship. Using this test, the arbitrator balanced the grievor’s many years of service with the company and impact of losing his job against his past performance (which was not exemplary, but not poor enough on its own to justify dismissal), the impact of theft on the employer, the significance of trust in the retail industry, that it was known that theft would result in termination, the importance of deterring this behavior, and the grievor’s continued denials and dishonesty. The arbitrator found that the employment relationship was irreparably damaged and the Union’s grievance was therefore denied. While the significance of trust in an industry that depends on income from easy-to-steal products is clear, and the seriousness of the issue was not the value of the item stolen, the fact that this man lost his job of 36 years for stealing cigarettes may surprise some people. This decision shows that even apparently trivial transgressions can damage the employment relationship beyond repair, such that terminating the employee is justified at law.Full decision available at: Decisions Up Werier Safeway. For more details or assistance in relation to employment law, Just Cause for Termination, Theft, Breach of Trust, Employment Relationships, or advice on what are Just Cause For Termination, kindly contact one of our Employee lawyers at Devry Smith Frank LLP. To browse some others law videos pertaining to Employment law, kindly browse through our media page. By Fauzan SiddiquiBlog, Employment LawMay 28, 2013December 5, 2020