Employee laid off after shifts were rearranged
This instalment of You Make the Call involves a worker who questioned her employer’s motives behind her layoff.
Northstar Frontier Services operates camps in remote areas that provide services to railway workers and is based in Sudbury, Ont. It hired Elaine Finlay to be a cook and camp manager in February 2011 on a seasonal relief basis, filling in at different camps until April 2012.
In 2013, Northstar hired Finlay to be a regular cook at a camp called Elsas. The rotation at camps such as Elsas stretched over a six-week period, with two cooks for each camp working three weeks on and three weeks off. Northstar paid the cost of transporting cooks to the camps, which for Finlay meant travelling from her home in Walkerton, Ont., 400 km to Sudbury and then to the Elsas camp. Because Finlay didn’t want to leave her car at the departure point for the train to Elsas, she left it in Sudbury and a Northstar employee picked her up and drove her from Sudbury to the departure point — another 300 km.
Northstar operated another camp called Auden whose two cooks worked a different, seven-week schedule — one cook worked five weeks and took two weeks off, with the second cook working two weeks and filling in when required during the other five weeks. This meant there was sometimes scheduling difficulties between the Elsas and Auden camps.
One day while working at the Elsas camp, a CN employee hit Finlay with a snowball, breaking her glasses and giving her a headache. She complained but the CN employee wasn’t disciplined. Later, someone complained about finding a hair in the food and Finlay suspected it was the same CN employee trying to make things difficult for her. Finlay alleged this employee was harassing her, but nothing came of it.
Two train derailments in February and March 2015 made things worse for Northstar’s scheduling. The two camps were only accessible by rail and Northstar had to comply with an excess hours permit from the federal government that placed limits on how many extra hours the cooks could work. Northstar decided that modifying the cook schedule at Elsas to match the seven-week rotation at Auden would help ease some of the transportation difficulties for the cooks of the two camps.
The new schedule involved one cook working five weeks in each camp, with a third cook working two weeks in each camp. As a result, only three regular cooks were needed between the two camps. The two cooks at Auden were kept on, keeping their schedules, and one cook was kept on at Elsa. The second Auden cook who only worked two weeks out of the schedule was given two weeks at Elsa, leaving Finlay as the odd cook out. She was laid off for discontinuance of function, as permitted under the Canada Labour Code.
On her last day of work, the CN employee who Finlay had accused of harassment offered her a ride back on a high-rail vehicle. After he dropped her off, Finlay heard that he told people he had set up her termination.
Finlay filed an unjust dismissal complaint, arguing there was no discontinuance of her function that allowed Northstar to lay her off. She said her duties were being done by someone else and her dismissal was in fact a reprisal for her allegations of harassment.
You Make the Call
Was Finlay unjustly dismissed?
Did Northstar have the right to lay her off?
If you said Northstar had the right to lay Findlay off, you’re right. The adjudicator referred to the Supreme Court of Canada’s 1993 discussion of discontinuance of a function, which “will occur when that set of activities which form an office is no longer carried out as a result of a decision of an employer acting in good faith.”
The adjudicator found Northstar’s decision to reorganize its work schedules was for legitimate economic purposes, as it would “generate savings and efficiencies in its operations,” including not only having one cook’s salary off the books, but also the significant cost of transportation to the camps. The reasons of business efficiency and cost reduction were legitimate business considerations that justified the revamping of the schedules that resulted in the company only needing three cooks instead of four between the two camps, said the adjudicator.
The adjudicator also found there was no evidence Finlay’s harassment allegation had anything to do with the decision to lay her off, and the CN employee’s statements that he was involved came after the layoff decision and didn’t seem credible.
“Anyone can make a statement claiming credit for an event after the event has occurred,” said the adjudicator. “ At best, the statements made by the CN employee — if he made them at all — may best be qualified as self-serving or self-aggrandizing.”
The adjudicator found that Finlay’s claims of reprisal and ulterior motives were “unfounded suspicions.” Northstar’s reorganization of the work schedule was for legitimate business reasons and there was a discontinuance of function that permitted Northstar to dismiss Finlay under the code.
For more information see:• Finlay and Northstar Frontier Services Inc., Re, 2016 CarswellNat 516 (Can. Lab. Code Adj.).