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Burt the Elf violates employment law!!

See if you can identify the employment law violations which arise in the following story of Burt, the Elf.
 
As required, Burt showed up at 5:45 a.m. for his shift to clean up his work bench and make sure he had all his necessary supplies to begin the day’s work in Santa’s Workshop. At 6:00 a.m., he duly punched the time clock and started hammering together wooden train sets.
 
One of the dolls on the conveyer belt over his head fell on Burt’s shoulder before he had hardly started the day’s work. Burt was a new Elf and asked the boss Elf who was in charge of safety issues. The head Elf, Sheila, said she was and she’d deal with it later. He was told to get back to work, it was Christmas Eve day and production was behind. After a couple of hours, Burt asked for a break but was told that he wouldn’t get one until five hours after his shift started and then it would only be for a half an hour.
 
Burt’s day was not going well and he started stewing. It was bad enough that they had forced him to sign a paper agreeing to have his wages docked for the skid full of Christmas ornaments he had smashed the month before when they fell off his forklift. In the middle of his ruminations the big man came around to say that everyone is being laid off at the end of their shift for two weeks without pay and since they were on lay off, they would not get any holiday pay for Christmas Day, Boxing Day or New Year’s.
 
When another doll fell off the conveyor belt and hit Burt in the head, he’d had enough. Holding his bleeding head, he stood up and told Sheila he wasn’t going to take it anymore and he was going home for the rest of the shift. Sheila told him if he did, his lay off would be permanent. She said that if he sat down, shut up and kept working, and said nothing more about his injury, all would be well.
 
Burt realized he couldn’t afford to lose anymore pay than he already was and sat back down. He thought Sheila was being particularly mean to him and that he obviously should have agreed to go out on a date with her when she asked last week. She had never been like this before.
 
During his break, Burt talked to his union steward, Mickey. Burt asked him if the union could do anything about Sheila’s treatment of him. Mickey said the union could if it wanted to but since Burt had refused to share his hot chocolate with him a few days back, Burt would just have to suck it up.
 
As the day wound down, the boss’s wife wandered into the workshop and noticed that Burt seemed downcast. After he punched out, she took him into her kitchen and gave him some cookies and milk. Feeling disconsolate, Burt confessed that he was thinking of looking for work elsewhere. When the big man happened through the kitchen and heard this, he accused Burt of being disloyal and terminated him on the spot with just cause.
 
The above events and characters are utterly fictitious and any resemblance to actual or mythical persons or places is purely a coincidence.
 
ANSWERS:  There are 8 violations. Burt is only entitled to a half an hour break for every five hours work and that one was a red herring. The violations are:
 
  1. Burt should have been paid from 5:45 not 6:00. Even if his showing up early wasn’t required, the employer has to pay for any work it allows an employee to render.
  2. There should have been an Occupational Health & Safety committee to report the safety issue to when the doll fell on Burt’s head, not just a supervisor.
  3. Even if they did get Burt to sign a document agreeing to his pay being docked for the dropped skid, you can’t dock somebody’s pay for faulty workmanship. Mistakes happen.
  4. The boss can lay Burt off if he wants under the Employment Standards Act, but he still has to pay statutory holiday pay based on the last four weeks wages before the Holiday divided by 20.  
  5. Obviously, the employer should have given Burt immediate medical care and was required to fill out a WSIB form to document the accident and injury.
  6. Sheila can ask Burt out on a date if she wants but she can’t treat him badly because he said no. That is sexual harassment under the Ontario Human Rights Code.
  7. The union breached its obligation to provide fair representation and cannot arbitrarily provide assistance based on who it likes. Burt could complain to the Ministry of Labour.
  8. Looking for new employment is not just cause for anyone’s termination. If he can get Mickey to cooperate, he should file a grievance with his union and seek reinstatement.
 
As published in the Hamilton Spectator, December 24, 2012
 
Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com