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HR
Compliance
Your Plain Language Guide to
Hiring, Firing, Human Rights, Benefits & Privacy
Volume 8 Issue 8
August 2012
TERMINATION
Can You Fire Employees for Being Late?
FEATURES
Termination
THIS STORY WILL HELP YOU
1
Is being late just cause for
termination?
Figure out when coming late to work is just cause for terminaton
Model Lateness Policy (p. 4)
Y
ou can’t fire an employee for showing up late for work once in a while. But
lateness can become just cause for termination if the problem continues and
gets more serious. At what point does lateness cross the line? It’s a question
that not only HR directors but courts and arbitrators have struggled with for
decades. By breaking down the case law, we can scope out 9 benchmarks that you can use
to determine whether you have a sound legal case to fire one of your own employees for
chronic lateness. There’s also a Model Lateness Policy on page 4 that you can adapt.
CONTINUED ON PAGE 2
IMMIGRATION
How to Hire Temporary Foreign Workers
THIS STORY WILL HELP YOU
Get a Labour Market Opinion and work permit for a temporary foreign worker
T
emporary foreign workers (TFWs) can make valuable contributions to your
organization. But hiring a TFW may require that you get a Labour Market
Opinion (LMO) from Service Canada. Here’s what HR managers need to know
to navigate the LMO process; we’ll also show you how to take advantage of a
new HRSDC program that enables you to get an accelerated Labour Market Opinion for a
highly skilled TFW in just 2 weeks rather than the usual 3 months.
What Is a Labour Market Opinion
Like other free market economies, Canada seeks to balance the virtues of immigration with
the need to protect its own citizens from unfair foreign competition. The LMO process
allows Service Canada to strike this balance on a case-by-case basis. To get a positive LMO
(aka an “employment confirmation”), the employer seeking to hire the TFW must show
that it can’t find suitable Canadians/permanent residents for the job and that letting the
applicant work in this country won’t have a negative effect on the Canadian labour market.
It typically takes about 3 months to secure a positive LMO.
CONTINUED ON PAGE 9
Immigration
1
Temporary Foreign Workers, 101:
How to deal with Labour Market
Opinions, Work Permits, etc.
REGULARS
Absenteeism
4
HR Month In Review
5
Constructive Dismissal
5
HR Trends: Absenteeism is on
the rise. But why?
Key legal changes and cases in each
province, territory and federally
Case of the Month: The difference
between resignation and
termination/constructive dismissal
Age Discrimination
11
Drugs & Alcohol
12
Quiz: Mandatory retirement of
employees if they’re not cutting the
mustard
Winners & Losers: Why catching
employees in the act of smoking pot
may still not be enough to fire them
IN FUTURE ISSUES
Background Checking & Keeping Violent
People Off Your Payroll
Dress Codes: Drawing the Line Employee
Freedom & Workplace Decorum
Severance Agreements: 8 Termination
Notice Traps to Avoid
How Far Can You Go to Control
Disruptive Union Organizing?
HR W Compliance Insider
2
hr compliance insider
Board of Advisors
Hugh A. Christie
Gowling, Lafleur, Henderson, LLP
Toronto, ON
1. Was the employee’s lateness problem serious enough?
2. Was the termination process fair?
PHASE 1: JUDGING THE SERIOUSNESS OF LATENESS
Vicki L. Giles, LLB
McLennan Ross LLP
Edmonton, AB
Termination without cause—the employment law equivalent of capital punishment—is appropriate
only for egregious offences, i.e., violations that permanently and irreparably destroy the employer’s
trust. Does lateness rise to that level? The answer varies from case to case. But, while there are no per
se rules, there are general guidelines from court cases you can use to judge whether you have solid
legal grounds to fire employees for lateness.
Maria McDonald, LLB
Dykeman Dewhurst O'Brien LLP
Toronto, ON
Ken Krohman
McKenzie Fujisawa
Vancouver, BC
1. Occasional Lateness Isn’t Just Cause
Just about all employees show up late on occasion. You might feel personally offended by this; you
might even feel like the employee is “stealing” from you. But when judging just cause, you can’t rely on
your personal sensibilities. And in the eyes of judges and arbitrators, occasional lateness is only minor
misconduct, meriting a warning at most.
Greg McGinnis
Heenan Blaikie
Toronto, ON
Robert Smithson
Smithson Law LLP
Kelowna, BC
2. Repeated/Chronic Lateness May Be Just Cause
Lateness starts getting serious when it keeps on happening over and over again. But it’s not just a
numbers game. High incident rates suggest that lateness isn’t simply a matter of punctuality but a
larger attitude problem symptomatic of an employee who either doesn’t care enough or deliberately
chooses not to show up on time.
R. Ross Wace
Wace & Associates
Mississauga, ON
Compliance
™
Your Plain Language Guide to
Hiring, Firing, Human Rights, Payroll & Privacy
To prove just cause, the employer must demonstrate that the employee’s lateness “prejudices the
proper conduct of its business.”
CONTRIBUTING WRITERS:
PAULA SANTONOCITO
SHERYL SMOLKIN
Example: Lateness that harms performance just cause to fire sales director [Franco v. Youthink
Publishing Inc., [2008] B.C.J. No. 2526, Dec. 11, 2008].
PRESIDENT AND CEO: ROB RANSOM
Example: Just cause to fire municipal clerk whose constant lateness has “disconcerting effect on
the rest of the staff” and forces co-workers to do her job duties [Elliott v. Parksville (City), (1990) 66
D.L.R.(4th) 107].
HR Compliance Insider is published by Bongarde Holdings
Inc. and is intended for in-house use only – commercial
reproduction is a violation of our copyright agreement.
This publication is designed to provide accurate and
authoritative information on the subject matter covered. It is
sold with the understanding that the publisher is not engaged
in rendering legal, accounting or other professional services.
If legal or other expert assistance is required, the services of
a competent professional should be sought.
4. Lateness May Be Just Cause When Coupled with Other Offences
So far, we’ve been talking about lateness as if it were the only thing an employee does wrong. But
in many cases, lateness is just one of a litany of performance- and attitude-related offences. And, of
course, the more offences an employee commits the better the case for termination without notice.
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FOUNDATIO
N
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EXCELL
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AWARD
WINNER
RS
NEWSLETTE
Example: 78 incidents of lateness in 3 years suggest conduct is deliberate and constitutes just
cause to fire a customer service representative [Convergys Customer Management Inc. v. Luba, [2005]
M.J. No. 51, March 7, 2005].
3. Lateness Must Harm Your Business
Managing editor:
GLENN S. DEMBY
Publications Mail #40065442.
WHAT THE LAW REQUIRES
The question of whether lateness is just cause boils down to 2 things:
David S. Cohen, EdD
Strategic Action Group
Toronto, ON
HR
IS LATENESS JUST CAUSE? CONTINUED FROM FRONT
Example: Just cause to fire cabinet maker not just because he’s chronically late but also for repeated
mistakes, arguing with co-workers and customers and failing to properly lock up the shop at night
[Khoziry v. Yaletown Office Furniture Ltd., [2004] B.C.J. No. 1096, May 4, 2004].
CONTINUED ON PAGE 3
HR W Compliance Insider
3
IS LATENESS JUST CAUSE? CONTINUED FROM PAGE 2
5. OK to Hold Probationary Employees to Stricter Standards
You don’t need to prove just cause to fire probationary employees
during the probationary period. All you need show is that you found the
probationary employee to be “unsuitable” for the job and that your decision
wasn’t arbitrary. Accordingly, you can be much stricter with probationary
employees on matters of punctuality.
Example: Repeated lateness supports employer’s decision to fire
probationary employee as unsuitable for heavy-duty cleaning job [de Freitas
Grievance, [2010] O.L.A.A. No. 281, June 4, 2010].
PHASE 2: MANAGING THE DISCIPLINARY PROCESS
Some offences are so egregious that a single incident may constitute just
cause. Not so with lateness. The proper response to lateness is progressive
discipline.
6. You Must Warn Employees
This might be the most important point in the whole story. You have no
chance of making termination for lateness stick unless you provide clear,
written warning:
77 Letting the employee what he did wrong;
77 Telling him what he has to do to improve; and
77 Explaining that he can lose his job if he doesn’t improve.
Example: No just cause to dismiss operations superintendent who
received glowing performance reviews, was never warned about lateness or
told she could lose her job if she didn’t correct it [Rutkowski v. Edmonton
Transit Mix & Supply Co. Ltd., [2007] A.J. No. 1197, April 27, 2007].
Example: Just cause to fire dock worker who was put on 90 days’
probation for lateness, clearly warned that this was his last chance but still
failed to improve [Fields v. ERB Transport Ltd., [2007] C.L.A.D. No. 344,
Sept. 12, 2007].
The flipside of warning is condonation, i.e., letting an employee get away
with coming to work late. Condonation lulls the employee into a false sense
of security and makes it harder for you to put your foot down later.
Example: No just cause to fire photographer for lateness after 5 years
of letting her imperiously come and go as she pleased [Cain v. Roluf’s Ltd.
(Roluf’s Camera Centre), [1998] O.J. No. 661, Nov. 13, 1988].
7. There Must Be a Convincing “Culminating Incident”
Being late once isn’t termination worthy; nor is being late twice, or even
3 times. But numbers of incidents matter over time. The important thing
is to stay the progressive discipline course and give the employee a fair
chance at redemption. If the employee keeps on ignoring the warnings
and showing up late, there may come a point when that next episode of
lateness proves the straw that breaks the camel’s back. This is called the
“culminating incident”—the moment when the employer concludes that
progressive discipline has run its course, the employee can’t be salvaged and
termination is the only option. As you’d expect, courts take a good hard
look at culminating incidents to ensure they’re compelling enough for the
employer to reach that conclusion.
Example: Being 2 minutes late not a legitimate culminating incident,
especially since it was the first time in the previous 6 months that the
employee had been late at all [Prokopowicz Grievance, [2010] O.L.A.A. No.
181, April 12, 2010].
Example: 7 minutes late is culminating incident where employee was
headstrong, locked in a power struggle with her boss and deliberately
showed up late to protest his authority [Galloway Grievance, [2003]
O.L.A.A. No. 493, Aug. 19, 2003].
Example: No just cause to fire grain operator who readily acknowledged
his lateness issues, made proactive efforts to address the family problems
that caused them and had what the judge considered a solid excuse for
showing up late in the culminating incident—he overslept because a crisis
with his troublesome son kept him up the entire night [Viterra v. Grain
Workers’ Union, Local 333, [2012] B.C.J. No. 493, March 12, 2012].
8. Disciplinary Procedures Must Be Scrupulously Followed
Progressive discipline is as much about procedure as substance. When an
individual’s job is on the line, courts are apt to seize upon the smallest of
procedural irregularities, breakdowns or inconsistencies to knock the penalty
down.
Example: No just cause to fire recently widowed father of 5 for lateness
because his case wasn’t reviewed by a supervisor as required by the
progressive discipline policy [Jazarevic v. Schaeffler Canada Inc., [2010] O.J.
No. 1804, April 30, 2010].
9. There Must Be Proper Documentation
Employers have the burden of proving just cause. To meet this burden, you
must have records documenting:
77 Your standards for employee punctuality;
77 What the employee did to violate those standards; and
77 The disciplinary actions you took to enforce the standards.
Example: Just cause fails where employer claims manager was
“frequently late” but can’t produce time records to prove it [Harbour Air v.
Maloney, [2012] C.L.A.D. No. 105, March 27, 2012].
Example: Employer claims mechanic was constantly late but attendance
records suggest he was late no less often than any of his co-workers and
that the real reason he was fired was for going on disability with a bad back
for the second time [Krenz v. Blue Max Auto Care Ltd., [2001] B.C.J. No.
1005, April 4, 2001].
CONTINUED ON PAGE 4
August 2012 © Bongarde • www.hrinsider.ca
HR W Compliance Insider
4
IS LATENESS JUST CAUSE? CONTINUED FROM PAGE 3
Conclusion
To sum up, you can’t fire employees for occasional lateness. But lateness
may be just cause if:
77 It’s a chronic problem;
77 It hurts your business;
77 The employee gets clear warning and a chance to improve;
77 The employee doesn’t take advantage of this opportunity;
77 There’s no reasonable prospect of salvaging the situation; and
77 You follow your disciplinary procedures to the letter. 
HR TRENDS
Absenteeism on the Rise
9.0
MODEL LATENESS POLICY
Here’s a Model Policy on punctuality and lateness that you can adapt
based on the terms of your collective agreements (or individual
employment contracts, if you’re workforce isn’t unionized) and
circumstances of your particular operations and workplace.
MODEL PUNCTUALITY & LATENESS POLICY
1. POLICY
All employees are expected to begin work at the scheduled time.
Coming to work on time is not just a formality. Employee lateness
reduces available work time and may result in the disruption of other
employees’ work schedules and customer service.
2. DEFINITION OF LATENESS
8.5
For purposes of this Policy, lateness means reporting to work or
punching in anytime after the employee’s scheduled start time or
reporting back from lunch more than one hour from the start of
lunch.
8.0
7.5
7.0
6.5
6.0
3. LATENESS PROCEDURES
5.5
3.1 Minor Lateness
5.0
Each time you are 10 minutes or less late, you must explain why
you were late to your supervisor when you arrive at work. Repeat
occurrences of minor lateness, i.e., 10 minutes or less, will be
addressed through the Company progressive discipline policy.
4.5
4.0
3.5
3.0
2.5
3.2 Major Lateness
2.0
1.5
1.0
0.5
0.0
Incidence
2000
Illness or Disability
Family or Personal Responsibilities
2010
Absenteeism has steadily grown in the past decade. Why?
It’s not just illness. Thus, in a recent UK study, 57% of
employees admitted to taking time off when they weren’t
ill. Among them:
• 22% cited family and personal responsibilities;
• 10% cited emotional problems like breaking up with
a girl/boyfriend; and
• 6%
said they just didn’t feel like dealing with a
difficult work situation. 
August 2012 © Bongarde • www.hrinsider.ca
Each time you are running more than 10 minutes late, you must
phone your supervisor to indicate when you expect to arrive at
work. Having a friend or co-worker call in on your behalf is not
acceptable except in the case of an emergency. Failure to phone in
will result in a verbal warning unless you can show that there were
uncontrollable circumstances for which you’re not to blame that
prevented you from making the call. Supervisors will assess the
situation before resorting to the Company progressive disciplinary
policy. Time sheets will reflect the actual time of arrival and the
employee will not be paid for the missed time.
4. SCHEDULE VARIATION
Supervisors may, at their discretion, allow minor variations in
working hours to allow for exceptional individual circumstances.
However, all employees are expected to work a full scheduled week
of the appropriate number of hours. The employee will be given the
opportunity to make up lost time if productive work is available. 
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5
HR Month in Review
A roundup of important new legislation, regulations, government
announcements, court cases and arbitration rulings.
CASE OF THE MONTH
Ontario Case Sheds Light on Difference between Resignation & Termination
With apologies to Donald Trump, saying “you’re fired” isn’t the only way for an
employer to end an employment relationship. Some wrongful terminations are
actually initiated by employees who prefer to leave rather than accept unfavourable
changes unilaterally imposed by their employers. Since it’s the employee who
walks out the door, these terminations raise a crucial legal question: Did the
employee resign voluntarily or get fired/constructively dismissed? At stake is
more than semantics and pride: Employees who resign don’t get termination
notice and other damages; employees who are fired or constructively dismissed
do. A new (May 2012) case from Ontario sheds light on how these cases get
sorted out.
THE CASE
What Happened: After taking over the business, the new owner of a hearing
aid company decided to retain the office manager in her current job with the
promise of a 15% equity share after 5 years. But the owner soon came to see the
manager as heavy-handed; the manager questioned the owner’s commitment
to the business. After 3 years of tension, things came to a head. Saying that the
situation couldn’t continue, the owner changed the manager’s duties, removed
her from customer contacts, took away her free bonus trips and other perks and
even insisted she use the rear entrance. The manager refused to accept the new
conditions and left.
What the Court Decided: The Ontario Superior Court ruled that the manager
was terminated and didn’t resign voluntarily.
How the Court Justified Its Decision: A resignation must be “clear and
unequivocal,” the court explained. The manager didn’t do or say anything to
evidence such intent. It was the owner who repudiated the original deal by
unilaterally changing the fundamental terms of her employment. All the manager
did was let the owner know that she rejected the new terms offered. So the
relationship was wrongfully terminated by the owner, the court concluded, and
awarded the manager $256,902, including $180,000 for the equity share she
never got.
Loyst v. Chatten’s Better Hearing Service, [2012] O.J. No. 1995, May 7, 2012
ANALYSIS
The real significance of Loyst is the light it sheds on the interplay among
resignation, termination and constructive dismissal.
Starting point: When it comes to unilateral changes to fundamental contract
terms, employers can’t force employees into a take-it-or-leave-it position.
Employee’s Options: What employers can do is notify employees of the
change. Employees then have 2 options:
77 Accept the change, either expressly or implicitly by continuing to work
under the new terms without objection; or
77 Reject the change and demand that the employer stick to the original deal.
If the employer insists on unilaterally implementing a change the employee
rejects, the employee can then either:
77 Leave right away and sue for wrongful termination; or
77 Stay on the job and sue for constructive dismissal.
Employer’s Options: Once employees serve clear notice that they reject the
proposed changes, the employer has 3 choices:
77 Back off and follow the original agreement;
77 Implement the change unilaterally and risk a constructive dismissal lawsuit;
or
77 Terminate the employee with proper notice (in which case, the employer
may then offer re-employment under the new terms).
What the employer can’t do is what the owner did in Loyst: Treat the
manager’s rejection of the new terms as a resignation and not pay proper
termination notice. 
Skilled Trades
May 9: The Assembly passed a resolution calling
on the government to press forward on various
initiatives in the skilled trades, including:
77 Introduction of a Journeyperson Mentorship
Program
77 Expansion of the Apprenticeship Wage
Subsidy Program
77 Registration of pre-apprentices in a tracking
system for students completing entry level
skilled trades programs.
Human Rights
May: A UN committee ruled that a government
housing authority discriminated against aboriginal
women by allowing the non-aboriginal and abusive
husband of Cecilia Kell claim the couple’s Belchoko
home. Ms. Kell had brought a court action against
her husband but had her case dismissed because
she couldn’t pay the required legal fees. The
committee recommended giving Ms. Kell a home,
paying her damages and training more aboriginal
women to work in legal aid.
LAWS &
ANNOUNCEMENTS
NUNAVUT
LAWS & ANNOUNCEMENTS
NT
NL
LAWS & ANNOUNCEMENTS
Domestic Violence
May 23: Nunavut and Northwest
Territories claimed the dubious
distinction of having Canada’s
highest domestic violence rates.
The overall national average
was 294 reported incidents
per 100,000 people. At 430 per
100,000, Manitoba’s rates were
also alarmingly high.
August 2012 © Bongarde • www.hrinsider.com
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FEDERAL
LAWS & ANNOUNCEMENTS
CASES
Employment Insurance
May 17: The government proposed legislation that would extend the Best 14 Weeks pilot another year and
make the Best 14 Weeks calculation formula, indexed by local market conditions, permanent effective April
7, 2013.
Company Must Keep Injured Employee on
Payroll despite 21-Year Absence
For 21 years, a transport company kept an
employee who lost part of his right arm in a work
injury on its payroll and maintained monthly
contributions to his health and pension plans.
In Jan. 2011, it finally ended his employment
and his benefits. Put that guy back on payroll,
the arbitrator ordered. Firing the employee for
being absent with a work-related injury coupled
with at least 16 years of failure to accommodate
him was a violation of the Canada Labour Code,
the arbitrator reasoned [Kingsway Transport v.
Teamsters, Local Union 91 (Sears Grievance),
[2012] C.L.A.D. No. 115, April 17, 2012].
Privacy
May 4: Canadian businesses are digitally storing more personal data than ever but not doing enough to protect
it, according to a new Privacy Commission study. Although 73% of 1,006 respondents say they use passwords,
encryption, firewalls or other tools to prevent unauthorized access, they may not be using the technology
effectively. For example, 39% of businesses that use passwords don’t have controls in place to ensure passwords
are hard to guess; an additional 27% said they don’t require employees to change their passwords.
Pensions
May 3: OSFI issued a Pension Assessment Remittance Form to help plan administrators calculate and remit
their annual pension assessments. Annual assessments must be paid no later than 6 months after the end of
the plan year (or the date of registration if it’s a new plan).
ALBERTA
LAWS & ANNOUNCEMENTS
CASES
Minimum Wage
May: Alberta will hike its minimum wage 35¢ to $9.75 per hour on Sept. 1, 2012.
The minimum wage for liquor servers will remain $9.05 until the general minimum
wage hits $10.05. Thereafter, the rates will remain exactly $1.00 apart.
Boss’s Email Inflicts Mental Stress that Workers’ Comp Covers
This cutting edge case began when an employee got an email from her manager
as part of a thread that included notes from the latter making personal and
disrespectful remarks about the former to 2 other managers. The employee was
so upset she had to take time off and seek medical treatment for an adjustment
disorder. Workers’ comp originally denied her claim for psychological injury
benefits but the Commission reversed. Getting written records containing
negative remarks about you from your boss isn’t just the normal pressure that
average workers experience; it was unusual and excessive and caused the
employee’s stress, said the Commission [Decision No: 2012-434, [2012] CanLII
25284 (AB WCAC), May 10, 2012].
Workers’ Compensation
May 4: The Ministry of Human Services and WCB announced that nearly 10,000
employers had qualified for $72.2 million in PIR rebates, i.e., workers’ comp
rebates under the Partnerships in Injury Reduction Program. PIR rebates go to
employers that implement efficient health, safety and return-to-work programs.
PIR participants have a 31.7% lower ratio of claim costs to premiums paid than
other employers, the WCB noted.
NEW BRUNSWICK
LAWS & ANNOUNCEMENTS
CASES
Apprenticeships
May 15: New Brunswick proposed major revisions to the apprenticeship system involving the creation
of a new apprenticeship and occupational certification board made up of industry representatives
that would set general program requirements, designate voluntary occupations, make exemptions to
compulsory trades and determine certification criteria. The government would keep responsibility for
overseeing the system, setting budgets and ensuring fair wages of apprentices.
Does Workers’ Comp Cover Injury after
Worker Quit?
Four days after quitting his job, a trucker went back
to the workplace to remove personal belongings
from his truck, slipped and injured his shoulder.
Workers’ comp denied his claim because the
injury occurred after his last day of work and while
he was performing a non-work-related task. But
the Appeals Panel disagreed, ruling that returning
toll money and keys to the employer and cleaning
out the employer’s truck are actions incidental
to employment and thus work-related under
workers’ comp [Re: 20126400, [2012] CanLII 21141
(NB WHSCC), April 18, 2012].
Workplace Safety
May 8: WorkSafeNB released the 2011 year-end results. Highlights:
77 8,751 companies inspected
77 6,782 orders issued
77 Lost time accident frequency of companies targeted for intervention decreased 18.9% since 2010
and 32% since 2001
77 Musculoskeletal injuries down 3% for all industries, 20% for targeted supermarkets.
LAWS &
ANNOUNCEMENTS
QUÉBEC
YUKON
Minimum Wage
May 1: The Yukon
minimum wage went from
$9.27 to $10.30 per hour,
second highest in Canada
behind only Nunavut at
$11. Future increases will
be indexed according to
the annual Consumer Price
Index for Whitehorse.
August 2012 © Bongarde • www.hrinsider.com
LAWS & ANNOUNCEMENTS
CASES
Minimum Wage
May 1: The Québec minimum wage
went up a quarter to $9.90 per hour.
The minimum wage for employees
who earn tips also increased 20¢ to
$8.55.
Stevedoring by Local Company Subject to Provincial, Not Federal
Regulation
The CSST and Court of Appeal ruled that the stevedoring operations of a
heavy equipment rental company were subject to provincial, not federal
OHS regulation. The Supreme Court of Canada agreed. Stevedoring is
normally associated with interprovincial commerce and shipping. But all of
the company’s operations were carried out within Québec. Stevedoring was
just a small part of operations and was integrated with the company’s overall
operations which were distinctly local in character [Tessier Ltée v. Québec
(CSST), [2012] S.C.J. No. 23, May 17, 2012].
Workers’ Compensation
May 17: The CSST set the 2013 average
contribution rate at$2.08 per $100 of
payroll, a nickel less than in 2012.
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BRITISH COLUMBIA
LAWS & ANNOUNCEMENTS
CASES
Minimum Wage
May 1: The BC minimum wage increased to $10.25 per
hour, $9.00 for liquor servers. Non-hourly rates paid to
camp leaders, live-in home support workers and resident
caretakers were also adjusted proportionally.
Temporary Foreign Workers Can Bring Class Action Wage Claim against Denny’s
A group of about 70 temporary foreign workers from the Philippines are suing the Denny’s
restaurant chain for wage and hour violations and charging improper recruitment fees. There
are 2 things about the case that make it very significant: 1. It’s one of the first to invoke ESA
protections to temporary foreign workers; and 2. The court said it could go forward as a class
action lawsuit [Dominguez v. Northland Properties Corp., 2012 BCSC 328 (CanLII), March 5,
2012].
Workers’ Compensation
May 2: The government tabled a revised version of Bill 14,
which would expand workers’ comp coverage of mental
stress claims. Currently, workers’ comp deems mental
stress work-related only if it’s the result of a discrete
traumatic event that happens at work, e.g., witnessing the
death or dismemberment of a co-worker. Tweaks:
77 Revise wording—from “mental stress” to “mental
disorder”
77 Require diagnosis from psychiatrist or psychologist
77 Bullying and harassment significant work-related
stressors
77 “Predominant cause” test to determine if mental
disorders caused by significant work-related
stressors.
Workplace Bullying
May 2: BC is working on a plan to crack down on workplace
bullying and harassment. Highlights:
77 Broaden definition of workplace “violence” under
current OHS law to include psychological abuse,
intimidation, etc.
77 Require employers to have formal workplace bullying
prevention plans
77 Develop toolkits to help employers prevent bullying
in the workplace.
Discriminating against Employee with HIV Costs Company $27K
A cleaning employee on medical leave knew the company held him in high regard and thought
he’d be welcomed back with open arms when he got better. He was wrong. Why did the
company tell him there was no work available when he wanted to return? It’s because they
found out I was HIV positive, the employee claimed. The Human Rights Tribunal agreed saying
that the company’s foot dragging on his return-to-work was sudden, unexpected and due at
least in part to his HIV status. So it awarded the employee $20,000 in damages + $7,000 in lost
wages [Malin v. Ultra Care Cleaning Systems Ltd., [2012] BCHRT 158 (CanLII), May 9, 2012].
Not Discrimination to Fire Disabled Employee Who Isn’t Going to Improve
After keeping open the position of a glazier on disability leave with a potentially blinding eye
condition and paying his medical bills for 4 years, a glass company decided to cut ties and
terminate his employment. The glazier sued for disability discrimination but the Human Rights
Tribunal dismissed his claim ruling that the company had reached the point of undue hardship.
The glazier’s condition was permanent and not going to improve. And the duty to accommodate
doesn’t require an employer to keep a position open indefinitely [Hargrove v. Phoenix Glass
Inc., [2012] B.C.H.R.T.D. No. 133, April 19, 2012].
Arbitrator Orders Reinstatement of Employee Fired for Using ‘F’ Word
An employee was fired for using the “f” word while discussing the denial of his short-term
disability benefits claim with the case manager. The arbitrator upheld the union’s grievance
and ordered the employee reinstated. In deciding upon termination, the employer relied on
the case manager’s account of the incident without conducting its own investigation. Moreover,
even if the allegations were true, the incident wasn’t by itself enough to justify termination. The
employee should have gotten a written warning, said the arbitrator [Teamsters Local Union No.
213 v. Canplas Industries Ltd. (Boyko Grievance), [2012] B.C.C.A.A.A. No. 47, April 28, 2012].
NOVA SCOTIA
LAWS & ANNOUNCEMENTS
CASES
Labour Relations
May 10: Proposed Bill 89 sets rules for resolving collective bargaining disputes in health
and community care. Thrust: Replace employees’ right to strike and employers’ right to
lock out with right of both to engage in “interest arbitration.” Initially, the sides would
try to work out a deal via a conciliation officer. If that fails, either side could bring the
dispute to interest arbitration for immediate resolution that’s fair to both sides and in
the public’s best interest. If passed, the new rules would take effect Jan. 1, 2013.
Injured Employee Wasn’t in Union Long Enough to Qualify for
Pension
A pension plan required members to work at least 300 years as a union
member. A veteran longshoreman who finally became a union member
after 26 years of service was able to work only 245 more hours before
becoming permanently disabled. The longshoreman claimed the hours for
which he was credited under workers’ comp should have counted toward
his service eligibility; he also argued that even if he hadn’t put in the
necessary 300 hours, the plan had sent him benefits statements and was
thus “estopped” from denying he was a member. But the court disagreed
on both accounts and the appeals court upheld its decision to toss out his
case [Downey v. Cranston, [2012] N.S.J. No. 234, May 8, 2012].
Workers’ Compensation
May 9: A private member’s bill—Bill 85—would include auxiliary members of municipal
police departments and RCMP detachments “workers” covered by Nova Scotia workers’
comp. The bill also stipulates that training exercises, traveling to and returning home
from emergencies are work-related activities for workers’ comp purposes.
LAWS & ANNOUNCEMENTS
SASK.
Garnishments
May 16: Saskatchewan approved Bill 29
changing the rules for (family support)
maintenance orders. Highlights:
77 New formula for calculating interest
on payment arrears
77 Rather than garnishment, orders to be
enforced by seizure of accounts
77 Joint and several liability of payor’s
employer for payments
77 Recipient may seize account of payor’s
debtor to enforce order.
Workplace Safety
May 17: Saskatchewan passed OHS Act amendments, erstwhile Bill 23. Highlights:
77 Maximum penalty for serious injury/death from $300K to $1.5 million
77 Clarify training, supervision, instruction and equipment maintenance duties
77 Sites with employees of 2 or more employers must designate “prime contractor” to implement safety plan
77 Employers must develop violence prevention plan if violence occurs
77 Government may order multiple health and safety committees at site.
Pension Reform
May 16: The pension reform law previously known as Bill 4 has now taken effect. The key provisions affect agreements
involving multi-jurisdictional plans, i.e., plans covered by more than one province’s/federal pension law. Highlights:
77 PNew agreements must be approved by lieutenant-governor-in-council
77 Government must publish each approved agreement in Gazette
77 Additional requirements apply where Saskatchewan government is party to agreement.
August 2012 © Bongarde • www.hrinsider.com
HR
HRWWCompliance
ComplianceInsider
Insider
8
ONTARIO
LAWS & ANNOUNCEMENTS
CASES
Workers’ Compensation
May 4: The headline news in Ontario this month was the
release of the Arthurs Commission workers’ comp reform
recommendations. Highlights: (Go to www.hrinsider.ca
for a complete analysis)
77 Base premiums on actual costs of insuring by
“sectoral group”
77 Crack down on employer experience rating abuses
77 Require employers to designate Health Safety and
Insurance Officers
77 Take away premium breaks of employers that
commit reprisals
77 Stricter accident reporting requirements.
Boss’s New Wife Poisons the Workplace
For 12 years, work was peaches and cream for the secretary of Dr. Blach’s medical clinic. But
it all went sour when the doctor got remarried and brought his new wife to work in the office.
The new Mrs. Blach bombarded the secretary with complaints and told her she was overpaid
$15,000 as a result of an “error” that would be corrected. It got so tense that the secretary
went on medical leave, never to return. The court agreed that the secretary was constructively
dismissed as a result of a poisonous work environment and awarded her 9 months’ notice-$32,676—plus interest [Drake v. Blach, 2012 ONSC 1855 (CanLII), March 21, 2012].
Pensions—Grow-In Benefits
May: The Superintendent posted for public comment draft
changes to Ontario pension regulations scheduled to take
effect on July1, 2012, providing clarification on:
77 Grow-in benefits for members of wound up plans
77 Grow-ins for members who get fired for other than
“willful misconduct”
77 Election to opt out of providing grow-in benefits by
existing jointly sponsored plans and administrators
of multiple employer plans
77 Superintendent’s power to order plans to wind up.
Pensions—Disclosure
May 9: The government published draft regulations on
plan disclosure requirements:
77 Plan records to be made available to administrator
upon request for inspection
77 Administrator may provide plan records via mail or
electronically
77 Defined benefit plan administrators must file
investment information summary.
Pensions—Jointly-Sponsored Plans
June: Comments on jointly-sponsored public pension
regulations ended. On the table:
77 Make plans cut future or ancillary before increasing
employer contributions to finance new deficits
77 Limits on amount or value of benefit cuts before
contribution increases could be considered
77 Allow increased employee contributions to cut
deficits if employee contributions currently less than
employer contributions
77 Third party dispute resolution required where plan
sponsors can’t agree on benefit cuts via negotiation.
Lack of Written Safety Policy Kills Due Diligence Defence
After a worker was electrocuted while troubleshooting a machine, an employer was charged
with an OHS violation of failing to provide him adequate safety instructions. The employer
claimed due diligence, arguing that it took reasonable safety precautions but the worker didn’t
use a spotter as required by his training. But the court disagreed. The worker’s training was
unclear, it found, because it let workers decide for themselves whether to use a spotter when
troubleshooting a machine. Rather than rely on workers’ discretion, the company should have
developed a written policy specifically telling them how to perform troubleshooting safely
[Ontario (Ministry of Labour) v. Linamar Holdings Inc., [2012] O.J. No. 2159, May 7, 2012].
Crane Operator Fired for Real Offences, Not as Safety Reprisal
A crane operator refused to lift a box because it didn’t list its load capacity rating. The supervisor
insisted that the load was safe to lift and since he couldn’t persuade the operator to do it, lifted
it himself. The operator reported the incident to the MOL. The next day, he got into another
argument with his supervisor and abruptly walked out of a meeting. The day after that, the
supervisor wrote him up for improper use of a spreader bar and was later fired. No safety reprisal,
said the arbitrator. The operator had a serious disciplinary record, was dishonest, insubordinate,
careless and devoid of remorse. So he deserved to be fired [National Steel Car Ltd. v. United
Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers
International Union, Local 7135, [2012] CanLII 25292 (ON LA), April 30, 2012].
Pushing Foreman from Platform Is Just Cause for Termination
A journeyman electrician was fired for pushing his foreman from a metal platform with stairs.
He claimed self-defence but the Labour Relations Board didn’t buy it. The electrician, who also
happened to have been one of the crew’s sub-foremen, violated the company’s workplace
violence policy and did it in a dangerous location. He didn’t apologize and there was no
indication he’d ever be able to work with the foreman again. So the Board upheld dismissal
even though it was the electrician’s first offence [Canadian Union of Skilled Workers v. Hydro
One Inc., [2012] CanLII 23317 (ON LRB), May 3, 2012].
OK to Fire Injured Worker Who Unreasonably Refuses Modified Work
A patrol officer for a housing complex injured his knee after his chair collapsed. After offering
him several kinds of modified work, which he refused, the employer fired him. He filed a
disability discrimination complaint, claiming his employer hadn’t accommodated him. The
Human Rights Tribunal ruled that the employer had tried to accommodate the officer. But
he rejected each modified job without saying why it wasn’t suitable or providing medical
information why he couldn’t return to work [Boyce v. Toronto Community Housing Corp.,
[2012] HRTO 853 (CanLII), April 27, 2012].
LAWS & ANNOUNCEMENTS
Pensions
Human Rights
May 25: A busy legislative year in Manitoba is about to get busier with the
announcement of a government plan to revise the Human Rights Code. Highlights:
May 17: Highlights of the newly proposed pension reform
bill, Bill 41:
77 Right of members to inspect plan documents
77 Allow DB plans to offer phased retirement to older
employees
77 Clarification of members’ rights on termination,
employers’ right to cut or suspend contributions
and wind-up rules.
Human Rights
May 30: PEI made a technical change to the definition of
disability in the human rights law. Substantively, what
constitutes a disability hasn’t changed; but now the
term is “disability” rather than “physical or intellectual
disability.”
August 2012 © Bongarde • www.hrinsider.com
MANITOBA
PRINCE EDWARD ISL.
LAWS & ANNOUNCEMENTS
77
77
77
77
Ban gender identity discrimination
Ban discrimination on the basis of social disadvantage and lack of education
New procedures for mediating discrimination complaints
Allow small panels to adjudicate cases.
Workplace Safety
Apr. 27: Manitoba became the second province (after Ontario) to establish a Chief
Prevention Officer position to oversee and coordinate government workplace safety
and workers’ comp. Responsibilities:
77 Review provincial workplace safety and health services
77 Oversee joint injury- and illness-prevention strategy
77 Ensure effectiveness of public awareness and prevention activities.
HR W Compliance Insider
9
HIRING TEMPORARY FOREIGN WORKERS CONTINUED FROM FRONT
PHASE 1: DECIDING TO SEEK AN LMO
An LMO is necessary to work in Canada only if the foreign worker:
1.
2.
Needs a work permit; and
Isn’t otherwise exempt from LMO requirements.
Work Permit Needed: Foreign nationals need a work permit to work in
Canada unless they’re covered by an exemption (under Section 186 of the
Immigration Regulations). Key exemptions:
77
77
77
77
Business visitors;
Official diplomats and foreign representatives;
Full-time students with study permits;
Students in a health field receiving professional training from a
medical teaching association in Canada;
77 Performing artists and athletes here for a limited engagement.
No LMO Exemption Applies: Foreign nationals who need a permit
don’t need an LMO if they’re in a category exempt from LMO requirements,
including:
77 Professionals, traders, investors and business people working in
77
77
77
77
Canada under international agreements like NAFTA;
Some types of entrepreneurs and intra company transfers;
Participants in exchange programs;
Certain academics, students and co-op students; and
People doing certain kinds of religious or charitable work.
Categories of occupations that generally do require an LMO include highskilled and lower-skilled occupations, seasonal agricultural workers and live-in
caregivers. If you think the position is subject to an LMO exemption, you can
get official confirmation from a Citizenship and Immigration Canada (CIC)
TFW Unit located in Moncton, Montreal, Toronto, Calgary or Vancouver.
The CIC officer will ask you for information about the job offer, employment
and employee and either grant official verification of the LMO exemption or
deny it and tell you that you must apply for the LMO.
PHASE 2: APPLYING FOR THE LMO
To obtain an LMO, you must submit an official Foreign Worker Application
for a Labour Market Opinion application form to the nearest Service Canada
Centre:
Did You Look Hard Enough for a Canadian?
You must make sufficient efforts to recruit or train Canadians/permanent
residents for the job as set out in HRSDC’s 2009 minimum advertising
guidelines for filling TFW positions with Canadians. HRSDC criteria vary by
occupation based on the occupations listed in the National Occupational
Classification system for skills levels O, A, B, C and D:
77 Category O covers senior management and requires advertising
through recruiters, in newspapers or online;
77 Categories A and B cover higher skilled occupations requiring a
university or college degree and, in some case, a specific number
of years of experience, and require advertising in Canadian job
bank for at least 14 days and up to 3 months, as well as secondary
advertising on websites such as workopolis or newspapers with
wide circulation; and
77 Categories C and D cover low skill occupations such as the
construction trades and require advertising in the Canadian job
bank.
Other specialized advertising requirements apply to groups like academics
and live-in caregivers. No matter which occupation is involved, you’ll need
records documenting your conclusion that there were no qualified Canadians
available, including the advertising you used, any candidates you interviewed
and why you rejected them.
Are Wages and Conditions in Line with the Norm?
Another factor Service Canada will consider is whether the wages and
working conditions you’re offering the TFW are consistent with norms for
the occupation, i.e., ones that would be acceptable to a Canadian worker
and aren’t exploitative of the TFW. You can use the labour market data from
workingincanada.ca to determine minimum, maximum and average salary
for the particular NOC occupational code and experience level in different
parts of the country. Rule: You must pay at least the 3-year average for the
position. Unfortunately, Service Canada doesn’t figure employee benefits and
other rewards into its TFW wage calculations.
Other Factors Service Canada Considers
Service Canada will evaluate other factors like whether:
77 The TFW is likely to fill a labour shortage;
77 There’s a labour dispute in progress—you can’t use TFWs to replace
striking workers;
77 Hiring the TFW will result in transferring skills or knowledge to
Canadians or creating or retaining employment for Canadians; and
77 An employer-employee relationship exists where the TFW agrees to
work full-time for a specific wage/salary.
What Happens If Service Canada Says No?
Service Canada will notify you in writing of its decision, typically within 3
months. If the answer is no, you have 2 options: Accept the decision or
challenge it. To get a decision reviewed, you must submit relevant new
information to the Service Canada Centre listed in the refusal letter.
PHASE 3: GETTING A WORK PERMIT
When and if you get a positive LMO from Service Canada, you still have
a couple of hurdles to clear. First, the TFW must get a permit to work in
August 2012 © Bongarde • www.hrinsider.ca
HR W Compliance Insider
10
HIRING TEMPORARY FOREIGN WORKERS CONTINUED FROM PAGE 9
THE ACCELERATED LMO
Canada (assuming, of course, the worker isn’t in one of the categories exempt
from permit requirements discussed above.) Assuming the TFW hasn’t yet
entered Canada, the work permit can be obtained either at a port of entry or
from outside Canada via visa post.
In April 2012, Service Canada adopted a new program allowing employers to
get LMOs in 10 business days.
Information TFW Must Provide to Get Work Permit
Can You Participate in the Accelerated LMO Program?
Visa officers may request the following information from the TFW:
77 Proof of identity;
77 Valid passport or travel document guaranteeing re-entry to issuing
77
77
77
77
country;
77 For higher skilled positions, i.e., NOC categories 0, A and B; and
77 Do it outside Québec.
Copy of the job offer or signed employment contract;
Exception: Accelerated LMOs don’t apply to hiring in the film,
entertainment and agriculture sectors.
Copy of the positive LMO; and
What Eligibility Requirements Apply?
2 photos of the TFW and all accompanying family members;
Proof of immigration status.
Fees Required to Get Work Permit
The following fees apply:
77
77
77
77
Yes, if you recruit TFWs:
Fee to process work permit application: $150;
Fee to process temporary resident visa (TRV): $50;
Total fee for both TRV and processing work permit: $150; and
Fee for accompanying family members: $75 each.
When TFW Must Undergo Medical Exam
A TFW doesn’t need to take a medical exam for a job lasting 6 months or
less. But medical exams are required if the TFW:
77 Is to be hired for an occupation designated as requiring an exam
because it involves public health;
77 Is to be hired for longer than 6 months; or
77 Resided for 6 or more months in any designated countries in the year
before applying for the permit.
PHASE 4: ALLOWING TFW INTO CANADA
AT PORT OF ENTRY
Finally, to enter Canada, TFWs who secure a positive LMO and work
permit (assuming they need those documents) must present the following
documents to the Border Services officer at the port of entry:
77 Passport or travel document that’s valid for the period of the
authorized stay (other than US citizens or residents of Greenland or
St. Pierre and Miquelon);
77 Signed job offer or employment contract;
77 Work permit approval (or permit exemption confirmation) from CIC;
77 Copy of positive LMO from Service Canada (or LMO exemption
confirmation from CIC);
77 Evidence of credentials, including education, professional and work
experience (if applicable); and
77 Temporary resident visa, if applicable.
August 2012 © Bongarde • www.hrinsider.ca
To participate in accelerated LMO, employers must be able to show that they
have:
77 Been issued at least 1 positive LMO in the past 2 years;
77 A clean record of compliance with LMO program requirements in the
past 2 years;
77 Not been the subject of an investigation, infraction or serious
complaint relating to LMO matters; and
77 No unresolved violations or contraventions under provincial
employment and recruitment laws.
Do the Same Criteria Apply?
Yes. Notably, the advertisement and recruiting efforts required for Canadian
workers under the regular LMO process also pertain to accelerated LMOs.
But there’s one notable difference: Under accelerated LMO rules, employers
can offer TFWs up to 15% less than the posted wage for Canadians.
This provision has become a lightning rod for public criticism by labour
advocates.
Do Any Other Special Requirements Apply?
Yes. In addition, to using the new accelerated LMO process, you must agree
to participate in a post-LMO compliance review of any positive accelerated or
standard LMO or LMO issued in the previous 2 years. It’s expected that on
average, 18% of positive accelerated LMOs will be selected for compliance
review each year. If you’re found to be not in compliance with the accelerated
LMO rules, you could be barred from using it in future, have other pending
LMOs refused and have the results sent to other federal/provincial
departments for further investigation.
Conclusion
Under both normal and accelerated LMO rules, you must comply with the
terms of the LMO, including wages, working conditions and location during
the term of employment. Employers are also subject to random audits,
particularly where they regularly employ large numbers of foreign workers. If
you’re found not to be in compliance with your LMO, you won’t be able to
hire any more temporary foreign workers for 2 years. 
HR W Compliance Insider
11
AGE DISCRIMINATION:
test
your
HR I.Q.
Is Making Poor Performing Employee Retire at 65 Age Discrimination?
SITUATION
Reporter Matt Turing has worked at the same newspaper for 34 years. After a great run, his work has steadily deteriorated—to the tune of 4
written performance warnings in the past 3 years. On his 65th birthday, Matt gets his pink slip. He claims age discrimination. The employer
cites a provision in the collective agreement giving it discretion to terminate “an employee who has attained normal retirement age who fails
to meet the performance standards expected for his/her position.”
QUESTION
justified termination, relying on the questionable provision to pull the
trigger renders the decision discriminatory.
Does Matt have a valid claim for age discrimination?
A. No, because Matt was terminated for performance, not age.
B. No, because 65 is the normal retirement age for his
position.
C. Yes, because Matt’s age clearly factored into the decision to
fire him.
D. Yes, because mandatory retirement is against the law.
ANSWER
C. Matt does have a valid age discrimination claim because
he was terminated at least in part because of his age.
EXPLANATION
This scenario, which is based on the New Brunswick case cited below,
illustrates a key principle of employment discrimination law: Where
age, race, religion, gender or other protected grounds figure into the
decision to terminate, the entire decision is illegal even if there are other
non-discriminatory factors involved.
In this case, the clause in the collective agreement giving the employer
discretion to hold employees to stricter performance standards after
they reach “normal retirement age” raises the age discrimination red
flag. Thus, while Matt’s performance issues might otherwise have
Result: Although he hasn’t won yet, Matt has established what’s
called a prima facie case of discrimination. That means the court won’t
dismiss his case and Matt will get the chance to prove his claim at
trial. And in the real world, once a prima facie case is established,
the balance of power shifts and forces the employer to either pay the
employee to settle or risk a trial.
WHY WRONG ANSWERS ARE WRONG
A is wrong because Matt was terminated for performance and age.
And once age enters the equation, the entire decision is tainted.
B is wrong because thanks to the elimination of mandatory retirement,
there is no such thing as “a normal retirement age” for a position.
D is wrong because it’s the right conclusion for the wrong reason.
Yes, mandatory retirement is now illegal; but the ban isn’t absolute.
Employers can still rely on defences to justify what would otherwise be a
discriminatory mandatory retirement policy. The most common defence
is to show that mandatory retirement at 65 or other pre-designated
age is a bona fide occupational requirement (BFOR), e.g., by proving
that employees physically can’t do a particular job once they reach the
designated age. But the rules are very strict and justifying mandatory
retirement as a BFOR is very hard to do in the real world. 
SHOW YOUR LAWYER
Malik v. New Brunswick Human Rights Commission, [2012] N.B.J.
No. 167, May 9, 2012
August 2012 © Bongarde • www.hrinsider.ca
HR W Compliance Insider
12
DRUGS & ALCOHOL
winners & losers
Can You Fire Employees for Smoking Pot at Work?
Sure, drug testing is complicated. But if you catch an employee in the act of smoking marijuana at work, you clearly have just cause to
terminate, especially if the employee getting high does a safety-sensitive job. Right? Unfortunately, it’s not so simple. The fly in the ointment
is the ban on disability discrimination. While smoking pot isn’t a disability, addiction to pot is. Result: If the pot smoking employee is an
addict, he’s considered disabled and thus entitled to accommodations under human rights laws. Here are 2 cases in which arbitrators had to
decide if an employee caught smoking pot at work had an addiction protected by disability discrimination laws.
TERMINATION IS OK
TERMINATION NOT OK
FACTS
FACTS
A city employee is arrested on the job for possessing marijuana.
During the city’s investigation, he admits to smoking marijuana
during work hours. “[I] smoked joints at work just like others
smoked cigarettes,” he tells the investigator. He also acknowledges
driving a city truck for drug purchases. But he also claims he’s
addicted to marijuana and sues the city for disability discrimination
after he’s fired.
An aluminum smelting employee is caught smoking marijuana at work.
Aluminum smelting is a safety-sensitive operation involving the use of heavy
equipment and molten metals. So the employer fires the employee under its
zero tolerance policy for drug use on the job. The union grieves, claiming that
the employee is an addict.
DECISION
The BC arbitrator refuses to uphold the termination.
DECISION
An Ontario arbitrator rules that the firing was justified.
EXPLANATION
The employee didn’t prove that he had a drug addiction, the
arbitrator concluded. So he wasn’t entitled to accommodations.
And purchasing drugs while working, regularly using them on the
job and operating the employer’s equipment while apparently under
the influence of marijuana—thus endangering both co-workers and
the general public—were just cause for termination. 
City of Ottawa v. Ottawa-Carleton Public Employees Union, Local
503 (Lavoie Grievance), [2011] O.L.A.A. No. 582, Dec. 7, 2011
EXPLANATION
The arbitrator acknowledged that smoking marijuana during smelting
operations was worthy of a “strong disciplinary response,” especially since
this was a repeat offence. But unlike the employee in Lavoie, the smelter in
this case was addicted to marijuana. The employer was aware of his addiction
but didn’t attempt to accommodate his disability before firing him. So the
arbitrator ruled that termination was too severe and knocked the penalty
down to a long suspension. 
Rio Tinto Alcan Primary Metal (Kitimat/Kemano Operations) v. National
Automobile, Aerospace Transportation and General Workers of Canada
(CAW-Canada), Local 2301 (Grant Grievance), [2008] B.C.C.A.A.A. No.
170, Dec. 16, 2008
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