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An Employer is not Required to Tolerate Excessive Absences

Jurisdiction: - Canada/Federal
Sector: - Transportation

Published in Lawson Lundell LLP Labour and Employment Newsletter (Winter 2005)

In a recent decision1, the Federal Court of Canada - Trial Division (the "Court") ruled that an employer is not required to accommodate an employee with excessive non-culpable or "innocent" absences by simply tolerating the absences.

The decision involved a review of two Canadian Human Rights Tribunal ("CHRT") decisions that were handed down in early 2003 concerning bus drivers employed by the Ottawa-Carleton Regional Transit Commission ("OC-Transpo").

One employee had been employed by OC-Transpo for nearly nine years. She had two types of diagnosed illness: (1) reoccurring migraine headaches that caused her to miss 57 full days and 11 partial days over the course of her employment; and (2) several transitory illnesses - gallbladder problems, broken ankle, bronchitis, etc. - that caused her to miss an additional 365 full days and 24 partial days over the course of her employment.  read more »

Wrongful dismissal claim denied where employee's company had contracted with the employer

Jurisdiction: - British Columbia

The BC Court of Appeal recently held that an individual whose company had contracted with the City of Vancouver could not maintain a personal wrongful dismissal action against the City.

Mr. Zupan was the owner of Mario Zupan Trucking Ltd. (the "Company") and was the principal driver of the Company's one truck. The Company was on the City's "hired truck list" and the City had used the company's services on an almost full-time basis for several years. Among other things, the City required that all truck operators on the list meet certain licensing, safety and registration requirements and also wear certain types of clothing. In 2001, the City removed the Company from the list because of problems with the Company's back-up driver.

The Court held that Mr. Zupan could not bring a wrongful dismissal claim against the City because there was no "legal relationship" and no "employer/employer" between Mr. Zupan and the City.  read more »

What is the effect of a break in service on the notice period?

Jurisdiction: - British Columbia
Sector: - Transportation

Published in Lawson Lundell Labour and Employment Newsletter (Winter 2004)

In a decision handed down on November 18, 2003 - Matheson v. Canadian Freightways Ltd., 2003 BCSC 1728 - the Supreme Court of BC considered the effect of a break in service on the notice period.

Matheson had commenced working for the defendant company in 1973. In October 1985, after giving one month's notice, he left the company and began working for a competitor. In July 1987, after a spate of unemployment, he once again commenced working for the defendant company.

On May 9, 2000, with no cause alleged, he was dismissed after eight months working notice. In determining what it believed to be reasonable notice, the company only took into account his latest period of unemployment.      

Matheson filed a wrongful dismissal action claiming that the company should have treated him as if his service had been uninterrupted and based his notice on the full 27 years of service.  read more »

BC Supreme Court certifies wrongful dismissal class action

Jurisdiction: - British Columbia

In Gregg v. Freightliner Ltd., 2003 BCSC 241, the BC Supreme Court certified a wrongful dismissal class action proceeding. There are approximately 200 employees in the class. The court certified the following six common issues to be tried:  read more »

Dismissed grievor's defence that he was addicted to internet pornography rejected, as chose not to get help

Jurisdiction: - Ontario
Sector: - Transportation

Public Service Alliance of Canada v. Greater Toronto Airports Authority (Ontario Grievance Arbitration, D. Murray, November 12, 2001)