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Your employer isn't necessarily out to get you.

The saying goes, “Just because you think everyone’s out to get you doesn’t mean they’re not.” And sometimes the opposite is also true.
 
Let’s consider Harry’s recently reported case. When Harry started working for his employer in 2001 he did so as a labourer. In 2005, he was made a supervisor. In early 2007, he allowed a fellow employee to enter a restricted area and use a workshop and tools for which the employee was not authorized. Harry received a written warning as this was a health and safety concern.
 
In early 2008, he let three employees leave for an hour and return without punching out or in. This was confirmed by video surveillance. Another written warning was received.
 
Soon thereafter he allowed an entire skid of product to leave the plant without labels and received his third written warning. At trial, this is about the time that Harry said he started to raise health and safety concerns.
 
In early 2009, Harry fell asleep during a shift. When the employer met with him to discipline him, he complained that his boss kept calling him a dog and complained again about health and safety issues.
 
The next day Harry called the Ministry of Labour about health and safety issues. Having refused the week before to work on a particular machine, he complained that it was unsafe and that the safety gate wasn’t properly shutting down the machine when opened. When the Ministry of Labour officer showed up the safety gate was working properly.
 
A few months later when he was advised that there was something wrong with the bottling machine he ignored it and two hours of bottle production had to be destroyed. He received a written warning and three days later he filed another complaint with the Ministry of Labour that he had not been provided with appropriate gloves for a job involving chemical use. The Ministry dismissed the complaint.
 
Ironically, within a week Harry was disciplined for refusing to wear a face mask when using a chemical in the plant. Instead of admitting fault, he made allegations once again that his supervisor was calling him a dog.
 
A few weeks later he asked a co-worker to help him build a case against some management employees and corroborate his allegation that his supervisor was calling him names and harassing him. The co-worker had heard no such thing and refused. In addition, the co-worker told management.
 
For Harry, this was the final straw. The employer terminated his employment. Harry sued for wrongful dismissal but lost. The judge believed almost nothing he said.
 
The tricky thing is with people like Harry is that they believe everything that comes out of their mouth.
 
In my younger and more innocent days as a lawyer I was more prone to be taken in by the Harrys of the world. Their conviction of their righteousness can fool you.  Inevitably, however, the cards just start to stack up and one realizes that there is another side to the story. For people like Harry, accepting any other reality than that they are a victim and wronged is impossible. They will spend their money on lawyers and take matters to trial regardless of firm and contrary advice from their legal counsel.
 
On another note, many people believe that once they phone the Ministry of Labour once or twice they are protected from termination because the employer will fear a reprisal complaint alleging the termination was revenge.
 
If the Ministry is called they will come in. the only thing an employer can do to protect itself is to make sure that their health and safety policies are well published and enforced and that everything else in their workplace is as it should be.
 
Finally, Harry’s employer relied upon all of the incidents referred to in this article to justify its decision to terminate Harry without providing him with pay in lieu of notice. On their own, any one of those incidents may not have justified a termination without severance. Cumulatively, however, the judge found that there were enough bricks in the wall of just cause for the employer to succeed.  If they had not been so well documented by the employer, that would likely not have been the case.
 
Ed Canning practices labour and employment law with Ross & McBride LLP, in Hamilton, representing both employers and employees. You can email him at ecanning@rossmcbride.com.
 
Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com