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Fired employee’s Facebook post calling company “s—hole” showed dismissal for workplace outbursts, threat was indeed appropriate

An employee who yelled and swore at a manager about a written test for a maintenance position, and a few days later took a gun out of a box in the company parking lot and “pumped it”, was fired for cause, an arbitrator has decided.  The employee, who already had a lengthy discipline record, also told the human resources manager that he would “regret his actions” and that the employee’s brother” knows” the HR manager, which the arbitrator in the employee’s dismissal grievance found was a veiled threat.

The employee said that the gun, which resembled an assault rifle, was an “airsoft” gun, and that he simply opened the gun box to look at it. He admitted later that it was not a good idea to have done that.

The arbitrator said that the employee’s confrontations with the managers, taken alone, might not have justified dismissal, even though they were very serious in light of Ontario’s Bill 168 which introduced harassment and violence provisions to the Occupational Health and Safety Act in 2010.

However, the employee’s Facebook post after his dismissal showed that he was not willing to take any responsibility for his actions nor show a willingness to avoid outbursts in the future.  The Facebook post described the workplace as a “s—hole” and said that he felt sorry for employees who still had to work “in a place with so much negativity”. He also wrote that since he was “caned” [sic] he no longer had to “concentrate on all the bull[—-] I put up with at that place for 10 years”.

In conclusion, the arbitrator decided that given the employee’s already lengthy disciplinary record and his continuing negative feelings towards the human resources manager and company, as shown by his Facebook post, dismissal was appropriate.

Service Employees’ International Union, Local 1 Canada v Specialty Care Trillium Centre, 2016 CanLII 23212 (ON LA)

Fired employee’s Facebook post calling company “s—hole” showed dismissal for workplace outbursts, threat was indeed appropriate

Shot at in parking lot, employee awarded $5,000 in damages from employer despite WSIB coverage

A labour arbitrator has awarded a unionized employee $5,000.00 in damages from his employer – despite the fact that the employer was registered with the Workplace Safety and Insurance Board.

The employee worked at a municipal community centre.  On the night of the shooting, he and four other employees went outside at around 10:30 pm to warm up their vehicles before leaving.  They lingered near their vehicles for about five minutes.  A car that had been driving back and forth in front of the community centre stopped, and two men got out and started shooting at the five employees. One worker was shot in the leg and “extensively injured”, while the employee in question was not shot, though he suffered some injuries in his effort to escape.  He did not require any immediate medical attention and did not miss any work.  He did not file a claim with the WSIB.  He still worked at the community centre.

The arbitrator noted that subsection 26(2) of the Workplace Safety and Insurance Act provides that, “Entitlement to benefits under the insurance plan is in lieu of all rights of action” that a worker has against the employer because of an accident happening to the worker in the course of employment.

The arbitrator decided that if the employee made or could have made a claim to the WSIB for lost wages, pain and suffering and/or mental distress, then the Workplace Safety and Insurance Act would bar any claim – by grievance or otherwise – against the employer for damages.  However, the arbitrator held that the employee, who suffered no lasting workplace injury, permanent impairment or loss of work hours or income, could not have made a claim to the WSIB.  As such, the Workplace Safety and Insurance Act did not bar his grievance for damages.

The arbitrator was satisfied that there was a reasonable prospect that the shootings would not have taken place had the employer satisfied its obligations under the collective agreement and Occupational Health and Safety Act to provide a safe work environment for the workers.  As such, the arbitrator awarded the employee $5,000.00 for pain and suffering and mental distress.

While the facts of this case are unusual in that the employee was not entitled to WSIB benefits but did have pain and suffering and mental distress for which he was entitled to damages, the decision shows that in some rare cases, employees with WSIB coverage could still claim damages directly from the employer.

Re Toronto (City) and CUPE, Local 79 (Charles), 260 L.A.C. (4th) 304 (Ont. L.A.)

Shot at in parking lot, employee awarded $5,000 in damages from employer despite WSIB coverage

Bill 132 Update: Ontario’s Sexual Violence and Harassment Legislation to Become Law September 8, 2016

Previously we reported on Ontario’s new sexual violence and harassment legislation, Bill 132, An Act to amend various statutes with respect to sexual violence, sexual harassment, domestic violence and related matters. On March 8, 2016, Bill 132 received Royal Assent.

To recap, Bill 132 amends various existing statutes with respect to sexual violence, sexual harassment and domestic violence. For employers, Bill 132 presents important workplace-related changes, by amending the Occupational Health and Safety Act (OHSA) to require employers to implement specific workplace harassment policies and programs and ensure that incidents and complaints of workplace harassment are appropriately investigated.

First, Bill 132 expands the OHSA’s definition of “workplace harassment” to include “workplace sexual harassment”, defined as:

  1. Engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome; or
  2. Making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome.

Bill 132, however, also clarifies that a reasonable action taken by an employer or supervisor relating to the management and direction of its workplace is not workplace harassment.

The Bill, as passed, requires an employer, in consultation with a joint health and safety committee or a health and safety representative (if any), to develop, maintain, and review at least annually, a written program that implements the employer’s workplace harassment policy. Further, employers must provide workers with appropriate information and instruction on the contents of their workplace harassment policies and program. An employer’s written program must set out, among other requirements:

  • measures and procedures for workers to report incidents of workplace harassment to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser;
  • how incidents or complaints of workplace harassment will be investigated and dealt with;
  • how information obtained about an incident or complaint of workplace harassment, including identifying information about any individuals involved, will not be disclosed unless the disclosure is necessary for investigating, taking corrective action, or by law; and
  • how a worker who has allegedly experienced workplace harassment and the alleged harasser (if s/he is a worker of the employer) will be informed of the results of the investigation and of corrective action that has been, or will be, taken.

Further, employers must conduct appropriate investigations in response to incidents or complaints of workplace harassment. Following an investigation an employer must inform both the worker who has allegedly experienced harassment and the alleged harasser (if s/he is a worker of the employer) of the results and of any corrective action that has been, or will be, taken.

Notably, an inspector now has the power to order an employer to conduct an investigation by an impartial third party, and obtain a written report by that party, all at the employer’s expense. Bill 132, however, does not specify the circumstances in which an inspector can, or will, order an employer to conduct such an investigation.

The above- noted OHSA amendments come into force on September 8, 2016. In order to ensure compliance with the legislation, employers must take steps beforehand to update and implement policies and programs related to workplace harassment.

Bill 132 Update: Ontario’s Sexual Violence and Harassment Legislation to Become Law September 8, 2016

After Co-Worker Washes Feet With Vinegar In Cubicle and Makes Threatening Statement, Employee Entitled to Transfer to Different Building

A Quality and Service Manager working for the Parole Board of Canada is entitled to work in an entirely different building from a co-worker – identified only as “Mr. X” – because she suffered from stress caused by Mr. X’s behaviour, a grievance adjudicator has held.

In 2009, Mr. X was moved to the cubicle next to the worker’s office. The worker alleged that Mr. X constantly distracted her during the workday by loudly unpacking his bag in the morning, eating strong smelling leftovers, walking barefoot in the office, making loud guttural noises, passing gas, swearing, and washing his feet with vinegar in his cubicle. The worker also testified that on one occasion when she was on the telephone, Mr. X was making so much noise that she stood up and hit their common wall to get him to stop. Mr. X then entered her office and said “What is your problem?… there is a line on the floor and do not cross that line because I do not know what will happen…”.

The worker testified that she complained to her supervisor, and asked that one of them be moved. The employer offered mediation as a method of resolving the conflict between the two workers, but the worker refused. The worker moved offices a few months later but she was still bothered by Mr. X’s behaviour when he passed by her new office location.

Despite the worker’s office move, 8 months later, Mr. X filed a harassment complaint against her, which included allegations that she called him a pig. To read the National Post’s article on Mr. X’s harassment complaint, click here.

Once the worker learned of the harassment complaint against her, she filed a harassment complaint against Mr. X and went on sick leave from September 2011 until March 2013. During that time, the employer offered the worker the accommodation of an office on a floor that Mr. X could not access. The worker refused, claiming there was a risk that Mr. X could access the floor by riding in an elevator with someone who did have access.

In or around April 2012, the worker filed a grievance against her employer, alleging that it did not comply with its duty to accommodate because she had medical notes stating she was fit for work, but not at the building in which Mr. X worked, and she did not receive an offer of accommodation that met her medical requirements.

The worker went on secondment in March 2013 for one year (in another building), at the end of which she was supposed to return to her position with her employer in the same building as Mr. X. The worker refused to return to work because, according to her, the corrective measures sought in her grievance (teleworking or working in a different building) had not been granted.

At the hearing, the worker tried to show that Mr. X’s abusive behaviour caused her emotional stress that affected her memory and her capacity to concentrate, and that she did not feel safe working in the same building as him. The Adjudicator considered whether the employer’s proposal to move her to another floor constituted a reasonable accommodation. The Adjudicator found that, in light of the testimony of the employee’s doctor that she had a real and genuine fear and that her medical condition would not improve if she returned to the workplace, even on a different floor, the employer’s proposed accommodation was not reasonable. Further, the Adjudicator found that the employer did not satisfy her that it was absolutely necessary for the worker return to that workplace.

The Adjudicator ordered the employer to move the worker to a different building, and to compensate her for the wages and benefits she lost during her sick leave.

Emond v. Treasury Board (Parole Board of Canada), 2016 PSLREB 4 (CanLII)

After Co-Worker Washes Feet With Vinegar In Cubicle and Makes Threatening Statement, Employee Entitled to Transfer to Different Building

Teachers’ union fighting for right to refuse work due where students violent

A student’s violent acts in a classroom have led to a dispute about the circumstances in which teachers may engage in a work refusal for safety reasons.

The student was described as having a “history of violent behavior”.  He became violent one morning by hitting and pushing staff and other students and kicking chairs.  The student was sent home, but when he returned to class, the teacher said that she did not feel safe and she was removed from the classroom.  Apparently a Ministry of Labour inspector was called in and decided not to make an order respecting the teacher’s alleged work refusal.   The union challenged that decision before the Ontario Labour Relations Board. The inspector asked the OLRB to dismiss the case based on oral submissions.

The inspector relied on section 3. 3 of Regulation 857 (“Teachers) under the Ontario Occupational Health and Safety Act which provides that the work refusal provisions of the OHSA do not apply to “a teacher where the circumstances are such that the life, health or safety of a pupil is in imminent jeopardy.” The inspector argued that, therefore, a teacher may refuse to work only where he or she has reason to believe that workplace violence is likely to endanger himself or herself, but that if the violence is caused by a student, there would invariably be a risk to other students and therefore the teacher would have no right to refuse to work.

The OLRB held that it required further evidence before making a decision on the case.  In particular, the OLRB required evidence of whether a student was “in imminent jeopardy”, which could not be determined without a full hearing.  The OLRB decided to send the case to a full hearing.

Toronto Elementary Catholic Teachers / Ontario English Catholic Teachers Association v. Toronto Catholic District School Board, 2016 CanLII 6786 (ON LRB)

Teachers’ union fighting for right to refuse work due where students violent

“Presumptive remedy” for retaliatory discharge under OHSA is reinstatement of employee, OLRB states

Where an employer fires an employee for raising safety concerns, the employee will generally be entitled to reinstatement, the Ontario Labour Relations Board has stated.

The case involved a restaurant employee who sent an e-mail to the owner complaining of workplace harassment and asking for a copy of the employer’s harassment policy.  In the owner’s e-mail response, he denied the harassment. He did not give her a copy of the policy.

A few days later, the owner sent the employee an e-mail advising that the Ministry of Labour had commenced an inspection under the Occupational Health and Safety Act and asking her to meet with the employer’s health and safety committee.  The employee responded that she was willing to do so, and again requested a copy of the harassment policy.  The owner never contacted her again, and did not schedule her for any more shifts despite the employee’s repeated requests to be returned to the schedule.

The employee filed a reprisal complaint under the OHSA with the Ontario Labour Relations Board. The employer did not attend the hearing.  In the absence of an explanation by the employer, the OLRB was satisfied that at least part of the employer’s reason for ceasing to schedule her was that she had raised health and safety issues.

The OLRB stated that, “The presumptive remedy for a reprisal in contravention of section 50 of the Act is to reinstate the discharged employee and to provide the employee with lost wages from the date of the discharge up until the date of the reinstatement subject to mitigation.”

However, in this case, the employee did not want to go back to work at the restaurant.  The OLRB decided that, “Given the manner in which her employment ended, I do not find that reinstatement would be a viable remedy in the circumstances.  I agree with counsel that, in the place of reinstatement, Ms. Thompson is entitled to damages for loss of employment.” The OLRB awarded her damages of $7,437.16 for “loss of employment and loss of wages”.

Thompson v 580062 Ontario Inc (Slainte Irish Gastropub), 2015 CanLII 76907 (ON LRB)

“Presumptive remedy” for retaliatory discharge under OHSA is reinstatement of employee, OLRB states

“I guess I’d have to kill you” remark could not reasonably have been interpreted as a “viable threat”: fired worker entitled to ESA termination pay

A worker’s comment that “I guess I’d have to kill you” was clearly inappropriate but did not constitute wilful misconduct under the Ontario Employment Standards Act, the Ontario Labour Relations Board has held.  The case shows that not every comment that is, on its face, threatening will constitute just cause for dismissal. Context is important.

The worker, a machinist, got into an argument with a coworker whom he thought had taken one of his tools.   The coworker snapped at him and told him to “f— off, I don’t give a f—“.  Another worker stepped between them and told them to stop. The coworker said that if the worker hit him, he would be “put away for the rest of your life”.   The worker then chuckled and said,  ‎”I guess I’d have to kill you”. The confrontation lasted about five minutes.   The worker returned to work.

Apparently the company called the police. Two officers attended at the workplace and confronted the worker about his comment.   The company assured the worker that it would not press charges, but had the police escort him off the premises.   The next day, the company fired him, and returned his tool to him at the same time.

The worker filed a complaint with the Ontario Ministry of Labour claiming his eight weeks of ESA termination pay.   The company argued that he was disentitled because he was fired for wilful misconduct.  An Employment Standards Officer decided that the worker was dismissed for wilful misconduct and thus not entitled to ESA termination pay. The employee challenged that decision at the Ontario Labour Relations Board.

The OLRB held that the comment was very serious. However, it did not constitute wilful ‎misconduct.   Firstly, the worker was provoked by the coworker refusing to return his tool and then swearing at him. Secondly, in the context, it was not reasonable to interpret the comment as a viable threat. The worker had chuckled as he said it. He changed the subject of the conversation afterwards and then went back to work, putting an end to the confrontation.  The company had let him go back to work, suggesting that the company did not believe that he posed an ongoing threat. Thirdly, the worker had eight years of service and there was no evidence of any misconduct justifying any written or verbal warnings.

As such, the comment did not constitute wilful misconduct under the ESA, and the worker was entitled to his ESA termination pay.

Harriott v 1145365 Ontario Ltd., 2015 CanLII 79586 (ON LRB)

 

“I guess I’d have to kill you” remark could not reasonably have been interpreted as a “viable threat”: fired worker entitled to ESA termination pay

Bill 132: Ontario’s New Sexual Violence and Harassment Legislation

The Ontario Government recently introduced Bill 132, An Act to amend various statutes with respect to sexual violence, sexual harassment, domestic violence and related matters as a response to the Government’s “It’s Never Okay: An Action Plan to Stop Sexual Violence and Harassment” policy statement announced earlier this year.

Bill 132 will amend various existing statutes with respect to sexual violence, sexual harassment, and domestic violence. For employers, important changes will stem from Bill 132’s proposed amendments to the Occupational Health and Safety Act (the “OHSA”), which include modifying the current definition of “workplace harassment” and imposing additional obligations on employers concerning their workplace harassment policies, programs and investigations.

Under Bill 132, the OHSA’s definition of “workplace harassment” will be expanded to include “workplace sexual harassment”, which is defined as:

  1. Engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome; or
  2. Making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome.

Notably, Bill 132 also clarifies that a reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace is not workplace harassment.

Bill 132 will require an employer’s program to implement a workplace harassment policy under section 32.06(2) of the OHSA to further set out:

  • Measures and procedures for workers to report incidents of workplace harassment to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser;
  • How incidents or complaints of workplace harassment will be investigated and dealt with;
  • That information obtained about an incident or complaint of workplace harassment, including identifying information about any individuals involved, will not be disclosed unless the disclosure is necessary for the investigation or corrective action, or is required by law; and
  • How a worker who has allegedly experienced workplace harassment and the alleged harasser (if he or she is a worker of the employer) will be informed of the results of the investigation and of any corrective action taken.

An employer will be required to renew its program at least annually and provide its workers with appropriate information and instruction on the contents of both the policy and program.

When faced with a “workplace harassment” incident or complaint, under Bill 132 an employer will be required to ensure that an appropriate investigation is conducted and that both the worker who has allegedly experienced harassment and the alleged harasser (if s/he is a worker of the employer) are informed of the results and of any corrective action that has been, or will be, taken. Notably, Bill 132 will allow an inspector to order an employer to have an investigation and report completed by an impartial third-party, at the employer’s expense.

Bill 132 passed first reading on October 27, 2015. If passed, the provisions of Bill 132 relating to the OHSA will come into force either six months after receiving Royal Assent or on July 1, 2016, whichever is the later date.

The Bill can be found here. A press release from the Ontario Government announcing Bill 132 can be found here

This article originally appeared on the Dentons blog, employmentandlabour.com.

Bill 132: Ontario’s New Sexual Violence and Harassment Legislation

When public perception and the law differ: man fired for heckling TV reporter at soccer game is rehired after arbitration process

Just because members of the public call for the firing of an employee for yelling sexual taunts at a TV reporter at a sports match, does not mean that the firing is legally justified, a recent case illustrates.

A hydro employee fired in May for hurling obscenities at at TV reporter has been rehired, according to a Canadian Press story.

The employee, an assistant network management engineer with Hydro One, was fired in connection with the incident at a Toronto FC game.  A media firestorm ensured, with many Internet commentators and others calling for his firing.  Hydro One did dismiss him, citing violations of its employee code of conduct.

It is not clear whether an arbitrator ordered Hydro One to reinstate the employee, or whether Hydro One did so as part of a settlement.

The case raises the thorny issue of when employees can be disciplined or fired for off-duty conduct.  At the very least, the employee’s rehiring shows that what may seem obvious to members of the public – that vulgar, offensive and/or harassing off-duty conduct justifies firing – may not always be legally correct.

The Canadian Press story, reported on The Globe and Mail Website, can be found here.

When public perception and the law differ: man fired for heckling TV reporter at soccer game is rehired after arbitration process

OHSA duties did not require employer to issue public response to “smear campaign” against non-racialized jail employees: adjudicator

An adjudicator has held that the Occupational Health and Safety Act‘s “general duty” clause did not require an employer to issue a public response to a “smear campaign” by one employee and his lawyer against non-racialized employees of a jail which caused them emotional stress.

The employee (a correctional officer) and his lawyer made public statements that were reported by the media.  Among the lawyer’s statements was the following, as quoted on a website and in a newspaper article:

“There is a public interest in rooting white supremacists out of a jail,” Falconer said. “Keep in mind that in addition to being in a position to harass their fellow racialized officers, these white supremacist officers are in charge of inmates, often inmates that are black.”

The statements by the employee and his lawyer were in relation to an application that the employee had commenced against the Ministry of Community Safety and Correctional Services and his union at the Human Rights Tribunal of Ontario.  The union claimed that the statements “fanned racial tension” in the workplace which had abated considerably in the past few years.

The adjudicator held that the reasonable inference to be drawn from the quoted statements was that some non-racialized correctional officers were responsible for the racist hate letters sent anonymously from 2005 onwards to mostly racialized correctional officers at the jail.

The union filed a grievance against the employer’s failure to make a public statement against the comments.  The adjudicator found that the lawyer’s statements disparaged non-racialized correctional officers because they would be associated in the public’s mind as “white supremacists”.  Some of those employees suffered emotional stress as a result, and certain of them were subjected to contempt and abuse inside and outside the jail.  They claimed that this was a health and safety issue, requiring a response from the employer.

The union’s grievance claimed that, among other things, the Occupational Health and Safety Act‘s “general duty” on employers in section 25(2)(h) to take every precaution reasonable in the circumstances for the protection of workers, required the employer to issue a public response to the statements from the worker and his lawyer, given the health and safety issues – including stress – suffered by employees as a result.  Effectively, the union’s argument was that the employer’s duties under the OHSA required it to publicly support the non-racialized employees in order to reduce their stress and the hostility that they suffered as a result of the lawyer’s statements.

The employer argued that it cannot have breached the OHSA because there is no evidence of “serious illness” resulting to any of the employees, and that serious illness must be something more than “tension, stress, irritation or unhappiness”.

The parties agreed that the employer’s conduct must be judged against the standard of reasonableness.  The adjudicator held that the employer had acted reasonably in not issuing a press response.  If the employer were to start issuing public statements in reaction to public comments on cases that were before tribunals, there would be significant policy consequences for the employer, as the Crown.

The adjudicator decided, though, that ideally the employer would have issued an internal statement through a joint union-management statement, but the employer’s approach – to deal with employees’ issues as they arose – was within the range of reasonable responses.

As such, the adjudicator dismissed the grievance.

Ontario Public Service Employees Union (Blacquiere et al) v Ontario (Community Safety and Correctional Services), 2015 CanLII 67994 (ON GSB)

OHSA duties did not require employer to issue public response to “smear campaign” against non-racialized jail employees: adjudicator

Sexual joke was “worse than the usual sexual humour of the workplace”: hydro employee was fired for cause

A hydro worker’s sexual harassment of a co-worker, including an offensive sexual joke, justified his dismissal, the Ontario Labour Relations Board has held.

The OLRB found that the employee was upset by the fact that his female co-worker was on the way to being in a supervisory position to him.  The employee set about trying to belittle and isolate the co-worker.  He made disparaging comments about her abilities.  Perhaps most concerning was his telling of “the bulldog joke” which contained sexual references which were both objectifying and disparaging of women.  The OLRB stated that, “This joke was qualitatively worse than the usual sexual humour of the workplace.”  It was reasonable for the female co-worker to experience this joke as being directed towards her, the only female present at the time.  The employee ought to have known that the joke would be extremely offensive to her.

The employee also made a comment about his wife that disparaged and objectified her and disparaged women in general.  In disparaging women, the employee sent the message to others that his female co-worker did not belong on the worksite.

Interestingly, the union argued that the fact that the co-worker had asked to be treated as “one of the guys” was a “mitigating factor” suggesting that the employee’s conduct was not as serious.  The OLRB disagreed, stating that the female co-worker wanted – and was entitled to – “fair opportunity, fair treatment and fair acceptance”.

The OLRB held that the employee engaged in a course of conduct of sexual harassment and bullying behaviour towards his female co-worker.  His actions could not be viewed as a series of isolated incidents.  Further, over his 3 1/2 years with the company, he had been insubordinate time and again. In conclusion, the OLRB held that the employer had just cause for immediate dismissal of the employee.

Labourers’ International Union of North America, Ontario Provincial District Council and Labourers’ International Union of North America, Local 493 v Hydro One Networks Inc., 2015 CanLII 63834 (ON LRB)

 

Sexual joke was “worse than the usual sexual humour of the workplace”: hydro employee was fired for cause

OLRB orders employer to reinstate apartment building superintendent allegedly fired for reporting workplace violence

The Ontario Labour Relations Board has ordered an employer to reinstate an apartment building “office administrative superintendent” who alleged that she was fired after reporting that her husband, the maintenance superintendent at the same building, threatened their daughter and was about to hit her.  They resided in an apartment in the building.

Importantly, the employer did not file a Response to the employee’s OLRB Application, meaning that the OLRB’s decision was of a “default nature”.

The employee alleged that after she reported the incident of workplace violence, the property manager told her to “calm down” and not to call the police, and that she should “let it go” and forgive her husband.  The employee moved to a temporary shelter and reported the matter to police.  Her husband was arrested by police and was also fired by her employer.

The employee stated that she was without income, and would be required to change her daughter’s school.  The OLRB found that on the basis of the facts pleaded by the employee, she was “in a highly vulnerable and precarious position”.  Her allegations provided an “arguable case” that she was fired for asking the employer to comply with its workplace violence obligations under the Occupational Health and Safety Act; she had shown that she would suffer harm and real prejudice if she were not reinstated; and the employer had not provided any evidence that it would suffer prejudice or harm if she were reinstated pending the final determination of her safety-reprisal complaint.

As such, the OLRB decided to order the employer to reinstate the employee to her job “forthwith on the same terms and conditions” (which would, it appears, also require the employer to give her back her apartment in the building) pending the final outcome of the employee’s safety-reprisal case.  If nothing, else, this case demonstrates why employers should file a Response to all safety-reprisal claims made against them.

A.A. v B.B. Ltd., 2015 CanLII 53737 (ON LRB)

 

OLRB orders employer to reinstate apartment building superintendent allegedly fired for reporting workplace violence

Employee properly fired for workplace violence threats, despite his mental disability: Appeal Court

An employee’s mental disability, unknown to his employer at the time of dismissal, played no role in the reason he was fired.  He was fired because he made violent threats against coworkers, the Ontario Court of Appeal has held.

Although the employer had been accommodating of the employee’s “various ‘disabilities’ he reported to them over time: his alcoholism, his thyroid and cardiac issues”, the employer was unaware of his “mental disability” and did not engage in discriminatory conduct in firing him for workplace violence. The court stated, “They fired him as they would any employee who engaged in such workplace misconduct.”

The Ontario Court of Appeal quoted the following statement of the British Columbia Court of Appeal in British Columbia (Public Service Agency) v. British Columbia Government and Services Employees’ Union, 2008 BCCA 357 (CanLII) in which an alcoholic employee was fired for theft:

“I can find no suggestion in the evidence that Mr. Gooding’s termination was arbitrary and based on preconceived ideas concerning his alcohol dependency. It was based on his conduct that rose to the level of crime. That his conduct might have been influenced by his alcohol dependency is irrelevant if that admitted dependency played no part in the employer’s decision to terminate his employment and he suffered no impact for his misconduct greater than that another employee who suffered for the same misconduct.”

Bellehumeur v. Windsor Factory Supply Ltd., 2015 ONCA 473 (CanLII)

Employee properly fired for workplace violence threats, despite his mental disability: Appeal Court

Snowplow driver dismissed due to two accidents, not workplace violence “head-butting” complaint

A snowplow driver’s bad driving record, not his workplace violence complaint, was the reason for his dismissal, the Ontario Labour Relations Board has decided.

Vehicle safety and safe road conduct were important to the employee’s employer, a contractor.  In January 2015, the employee had a single vehicle accident while driving the snowplow, which spun around, crossed the road and landed in the ditch on the opposite side of the road.  Three weeks later he had another single vehicle accident; while he was driving the snowplow partially off the asphalt, he drove into the ditch. The two accidents cost the company more than $20,000.00.

After the second accident, the police and fire department arrived.  Shortly afterwards, three employees of the company arrived.  The employee and one of his coworkers had a verbal altercation.  The employee claimed that his coworker “head-butted him in the face”.  However, when the employee was taken to the hospital he initially reported to hospital admissions that he had hit his face on the door of the truck. A few days later, the company dismissed him.

The employee claimed that he was dismissed in retaliation for raising safety issues (the head-butt incident, which he said was workplace violence).  The OLRB dismissed the complaint, noting that the employer had investigated the incidents and had decided, in good faith, that the employee was at fault.  After the first incident, the employer gave him a “final warning”.  The OLRB was satisfied that the decision to dismiss him was based solely on the “at fault” accidents.

Fotak v Fermar Paving Ltd., 2015 CanLII 46915 (ON LRB)

Snowplow driver dismissed due to two accidents, not workplace violence “head-butting” complaint

“Discussing inappropriate personal matters at work”, aggressive conduct, gets employee fired for cause

An employee on a “last-chance” agreement was fired for cause for his “aggressive, condescending and rude” behaviour including discussing sensitive personal matters at work.

The employee had worked at the company for 28 years as a general clerk at a grocery store.  He had been fired previously and was reinstated at a different store as part of a mediated settlement.  Under the settlement, if he behaved “in an inappropriate manner in the workplace, which would attract a disciplinary response”, he would be subject to discharge.

Shortly afterwards, two teenage coworkers filed complaints about the employee, alleging harassing and bullying behaviour.  The arbitrator considered the complaints and found that the employee “is a very aggressive person and does not back away from strongly asserting his views”.  He had been aggressive, condescending and rude towards those employees.

The arbitrator then stated, “That brings us to a particularly serious allegation about Mr. Tamelin discussing inappropriate personal matters at work.”  According to one witness the employee had been “talking about his personal life with his past relationships, wives, going on about them in a very negative way, actually swearing about the, uncomfortable for me and for any customer.  Didn’t want to add into the conversation.  Also talking about the United States and his political views.”  He had used offensive terms to describe his past wife.

The arbitrator ruled that the employee had “acted very inappropriately” towards the two teenage employees.  He had not been provoked by them.  As such, the employer had cause for discipline.  Given the “last chance” clause in the settlement agreement, discharge was appropriate.

Overwaitea Food Group v United Food and Commercial Workers Union, Local 1518, 2015 CanLII 49536 (BC LA)

 

“Discussing inappropriate personal matters at work”, aggressive conduct, gets employee fired for cause

Labour arbitrator agrees to hear harassment-retaliation grievance under OHSA

Although a temporary employee had no termination protection under the collective agreement, he did have the right to advance a reprisal / retaliation claim under the Occupational Health and Safety Act, a labour arbitrator has ruled.

Two months after starting, the employee filed a harassment / bullying complaint.  His employment was terminated three months later for having made threats of violence.

The arbitrator held that temporary employees had no protection, under the collective agreement, from termination of employment or harassment.  In fact, the union could not rely on any of the provisions of the collective agreement to advance the employee’s claim.

The arbitrator decided, however, that he had authority to decide whether the employer had violated section 50 (retaliation for raising safety issues) of the Occupational Health and Safety Act.  Although the arbitrator stated that, “Apart from section 50, nothing in the OHSA makes employers answerable for workplace harassment”, here the arbitrator had authority to determine whether the employee had been fired in retaliation for him raising issues that qualified as safety issues under the OHSA. The grievance could therefore continue but only on the harassment-retaliation complaint under the OHSA.

Cambrian College of Applied Arts and Technology v Ontario Public Service Employees Union, 2015 CanLII 32501 (ON LA)

Labour arbitrator agrees to hear harassment-retaliation grievance under OHSA

Worker awarded WSIB benefits after health and safety officer “grabbed him and threw him to the ground”

In an unusual case, a construction site superintendent has won entitlement to workers compensation benefits after persuading an appeals tribunal that he was assaulted by his employer’s health and safety officer and was not an active participant in the altercation.

The worker testified that on the day in question, as he entered a construction site office he was asked by the health and safety officer why he had stopped trades people from throwing garbage from the third floor.  He replied that he had been asked by the employer to move the garbage container to another location, at which time the health and safety officer said he had no authority to do that and got so upset that he grabbed him and threw him to the ground. The worker sought treatment and was diagnosed with ligament strain.  The health and safety officer was dismissed shortly thereafter.

The worker applied for WSIB benefits, but the employer opposed the request. The WSIB assigned an investigator who found that the worker was an active participant in the altercation.  The WSIB case manager denied him entitlement to WSIB benefits.

The employer did not participate in the worker’s appeal to the Workplace Safety and Insurance Appeals Tribunal. The WSIAT looked at earlier statements given by the worker, the health and safety officer and the employer.  The WSIAT determined that the worker was not the aggressor, and that the health and safety officer’s statement was “less than credible” because he did not even acknowledge that he had grabbed the worker and thrown him to the ground.  The fact that the worker pushed the health and safety officer away did not make him a participant in a fight; instead, it was a normal act of self-defence.

Interestingly, the WSIAT noted that there was no evidence that the worker had a history of being physically violent, while there was evidence that the health and safety officer was involved in at least one prior physical altercation.

WSIAT Decision No. 2140/14 (2014 ONWSIAT 2760)

Worker awarded WSIB benefits after health and safety officer “grabbed him and threw him to the ground”

“Classic bullying” in company washroom, “which is the traditional hang out of bullies”, lands employee three-day suspension

A 6’2′, 300-lb employee’s hostile, intimidating comment to a smaller co-worker in the company washroom was just cause for a three-day suspension, an arbitrator has decided.

The evidence was that the suspended employee said, “I am your worst nightmare” to the co-worker as he stood over him in a threatening way.  The co-worker was 5’8″ tall and did not have the use of his left arm.

Although the union argued that the comment was said “in a joking manner”, the arbitrator disagreed. She held that the line, “I am your worst nightmare” meant “I am someone you should be afraid of”.  It was “classic bullying” which took place in the washroom “which is the traditional hang out of bullies”.  The arbitrator found that the employee had perceived that his co-worker was anxious and tried to intimidate him.

The arbitrator stated:

“The grievor’s comment was not specifically a threat of physical harm but it was a violation of the company’s Workplace Violence Policy because it was inappropriate behaviour that could insinuate violence and because it was hostile language that would be intimidating to a reasonable person. The conduct was just cause for some discipline. It was not a first offence because the grievor received a one day suspension a few months before for making a threatening comment. The three day suspension he received was, therefore, in accordance with the principles of progressive discipline.”

The decision is part of a growing line of post-Bill 168 cases in which arbitrators have shown decreasing tolerance for workplace violence and harassment.  Even one threatening comment can result in discipline.

Workers United Canada Council v Winners Merchants International, 2015 CanLII 21612 (ON LA)

“Classic bullying” in company washroom, “which is the traditional hang out of bullies”, lands employee three-day suspension

36-year employee properly dismissed for “unprovoked momentary outburst” with knife

A 57 year old employee with 36 years of service was properly fired for one incident in which he cut another employee with a knife, a labour arbitrator has decided.

The employee was a custodian with a textiles company.  He carried two “utility/box” cutting knives, which had short retractable blades.  While eating lunch one day, he became annoyed when a co-worker banged on the lid of his Tupperware container, causing several loud noises.  The employee produced two utility knives and said to the co-worker, “Would you like the curved blade or the straight blade?”  The employee began to swing one utility knife towards the co-worker’s legs, and then above the table towards his chest.  The co-worker reached out to grab the employee’s arm and, in his attempt to protect himself, received a shallow cut to his forearm, which started to bleed.  About an hour later, while the co-worker was leaving the workplace, the employee said, “You are lucky that I didn’t stab you in the heart.”

The employer fired the employee.  The union grieved the firing.  The employee was also charged with and pleaded guilty to the criminal offences of assault with a weapon and uttering a threat.

At arbitration, the arbitrator upheld the dismissal. He found that there was no justification for the employee’s outburst.  Rather, “it was simply an irrational act of anger”.  Although the employee had obtained counselling and anger management training his “unexplainable act” still made it questionable as to whether he would do something similar in future.  Also, the harm to the co-worker could have been grave.  Rather than apologizing to the co-worker, the employee commented that “You are lucky that I didn’t stab you in the heart.”  Further, the judge in the employee’s criminal case ordered that he have no contact with his injured co-worker, which made it very difficult for the employee to return to work.

As a result, the arbitrator was not satisfied that the fact that the employee received counselling and anger management training provided sufficient confidence that he would not engage in similar misconduct if he returned to work.  The fact that the employee’s misconduct was an “unprovoked momentary outburst” was “more of a concern than a consolation”.  Even though the grievor was 57 years  old and had 36 years of service, the discharge was appropriate.  This decision shows arbitrators’ increasing willingness to uphold employers’ decisions to terminate for workplace violence.

Firestone Textiles Company v United Food and Commercial Workers Canada, Local 175, 2014 CanLII 76772 (ON LA)

36-year employee properly dismissed for “unprovoked momentary outburst” with knife

Manager was not a “competent person” to conduct harassment / violence investigation under Canada Labour Code: Court

The Federal Court has held that a manager was not a “competent person” to conduct a workplace harassment investigation under the Canada Labour Code because the employee who filed the complaint had not agreed that the manager was an “impartial party”.

In December 2011, an employee of the Canadian Food Inspection Agency filed a written complaint alleging “miscommunication, favouritism, humiliation, unfair treatment and a lack of respect” on the part of his supervisor.

The CFIA assigned a manager to undertake a “fact-finding” review of the concerns raised in the complaint.  The manager conducted internal investigations and concluded that there were communication issues and unresolved tension, but no evidence of harassment.

The employee contacted a federal Health and Safety Officer, alleging that the manager was not sufficiently impartial to conduct an investigation. The HSO issued a Direction requiring the CFIA to appoint an impartial person to investigate the complaint pursuant to the Canada Labour Code.  The CFIA appealed that direction to an Appeals Officer of the Occupational Health and Safety Tribunal of Canada (who sided with the CFIA), and the employee then appealed to the Federal Court.

The court noted that section 20.9 of Part XX to the Canada Occupational Health and Safety Regulations under the Canada Labour Code sets out procedural obligations of an employer if it receives a complaint of “workplace violence”.  The court held that “harassment may constitute workplace violence, depending on the circumstances”.  The court stated that the alleged harassment in this case could constitute “workplace violence” if after a proper investigation by a competent person it is determined that the harassment could reasonably be expected to cause harm or illness to the employee.  (Workplace Violence is defined in that Regulation as, “any action, conduct, threat or gesture of a person towards an employee in their work place that can reasonably be expected to cause harm, injury or illness to that employee.”

The court noted that under the workplace violence provisions of the Regulation, a person is a “competent person” to conduct a workplace violence investigation if he or she is “impartial and is seen by the parties to be impartial” and has the necessary knowledge, training and experience.

In this case, the employee who filed the complaint did not agree that the manager was impartial.  The court stated:

“What the employer did here was have the Regional Director, Mr. Schmidt, not only institute a pre-screening and fact finding exercise to determine the nature of the complaint and attempt to facilitate mediation, but also conduct a full investigation of the complaint, acting as a competent person under section 20.9(3). In his report, Mr. Schmidt mentions ‘investigation’ eight times and refers to his review of the evidence before him. He was not competent to do so, given there was no agreement that he was an impartial party by the employee and therefore had no authority to conduct any investigation, once the allegation of work place violence was unresolved at the pre-screening stage and still a live issue between the parties.”

As such, the manager’s investigation was essentially unusable, and the court referred the matter back to the Appeals Officer for re-determination of the issues in accordance with the court’s decision.

This decision shows the importance of employers – at least federally-regulated employers who are subject to the Canada Labour Code – of strictly complying with the workplace violence and harassment procedures set out in legislation or regulations.

Public Service Alliance of Canada v. Canada (Attorney General), 2014 FC 1066 (CanLII)

Manager was not a “competent person” to conduct harassment / violence investigation under Canada Labour Code: Court