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Persistent mockery, intimidation of supervisor was “juvenile and unworthy of a 12 year old”, warranted 6-month suspension of long-term employee

An employee’s persistent mockery and intimidating conduct towards a supervisor warranted a 6-month suspension, an arbitrator has held.

The employee’s conduct included the following:

1. On one occasion, after the supervisor greeted him, the employee started hollering aggressively at him, “Oh that’s the way it’s gonna be … Hi Dan, Oh Hi Dan, How are you.”  The employee continued to yell at the supervisor until he was far enough away that he could not hear him.

2. The next week, the employee was parked nearby and when he saw the supervisor, he rolled his window down and started hollering an aggressive and sarcastic greeting to him.

3. The next week, the supervisor met up with the employee who gave him a similarly aggressive greeting.

4.  When the supervisor was leaving work at the end of another day, the employee drove up in a truck so that he was close to the supervisor and rolled his window down and aggressively and sarcastically greeted him.

5.  On another occasion, the supervisor observed the employee see him, and said “good morning” and he replied with the aggressive greeting.  The employee continued with the loud aggressive greeting until the supervisor unlocked the door to the stores area and went in.

6.  Another day, the employee approached the supervisor and loudly greeted him, interrupting his conversation with another worker.

7.  Lastly, on another occasion, the employee very loudly and aggressively called out to the supervisor and carried on with an aggressive and bullying greeting.  This continued until the supervisor had reached the doorway that exits into a hallway.

The supervisor reported that the employee’s conduct was causing him to have trouble concentrating, he wasn’t sleeping, and his wife was concerned for their safety. He went to see his doctor and was referred for counselling.

The arbitrator found that the employee’s conduct appeared to relate to the supervisor’s efforts to bring some efficiency to an area of the company’s operations that was “in demonstrable need of change”.  The employee admitted that he had been deliberately sarcastic, that he knew his conduct was unwelcome, and that he had tried to get under the supervisor’s skin.  The arbitrator decided that his conduct violated the company’s violence and harassment policy.

The arbitrator stated that the employee’s conduct was “juvenile and unworthy of a 12 year old, let alone a man in his 50s.  It also however had a goading, threatening quality to it.”

The arbitrator concluded, however, that the employee’s conduct was “more immature than intentionally threatening”.  Also, had the supervisor warned the employee right away or reported the incidents under the violence and harassment policy (he said that he had not reported because he “did not want to make trouble” and feared how the employee would react), the employee might have changed his ways.

Given that, and the employee’s 34 years of service, the arbitrator reinstated the employee with no back pay, resulting in a six-month suspension without pay.  The employee was given “one last opportunity to show he can conduct himself in a civil and respectful way in his workplace.”

Hinton Pulp, A Division of West Fraser Mills Ltd. v Unifor Local 855, 2014 CanLII 57678 (AB GAA)

Persistent mockery, intimidation of supervisor was “juvenile and unworthy of a 12 year old”, warranted 6-month suspension of long-term employee

Fake e-mail to other employees results in criminal mischief conviction

An Ontario employee has been convicted of criminal mischief after sending a fake e-mail to fellow employees, degrading another co-worker.

The employee, apparently upset that the co-worker rejected his request that they be more than friends, sent an e-mail to nine other employees, purportedly from the female co-worker. The e-mail degraded the co-worker professionally, sexually and physically.

The employee pleaded guilty to criminal mischief.

The employee also pleaded guilty to separate criminal harassment charges, apparently unrelated to the workplace. He received a suspended sentence and two years’ probation on the mischief charge, and 90 days’ imprisonment (in addition to 2 months’ time served) on the criminal harassment charge.

R. v. Dewan, 2014 ONCA 755

Fake e-mail to other employees results in criminal mischief conviction

Court considers safety, fatigue of replacement workers in granting picketing injunction

A British Columbia judge has considered an employer’s concerns for the safety of replacement workers, in granting an injunction against picketing workers.

The employer and Unifor were in a labour dispute.  Unifor was picketing the employer’s place of business.  In an affidavit submitted on the company’s motion for an injunction, a company manager expressed concern over the safety of the replacement workers due to fatigue:

“In addition to the financial consequences of these increased delays and of greater concern to Cascade are the potential health and safety consequences for CanJet and Trenton personnel. It is very rare that we schedule our production work force for 12 hour days for a significant number of days in a row. The reason this is rare is because of a concern we have for the health and safety of the workers due to fatigue. These workers are repairing complex commercial aircraft and are working with complex tools and equipment. During the course of their duties, they are operating flight controls and doing high-skilled professional work that without due diligence could result in significant damage to the aircraft and/or serious injury to personnel. During the time that the bus is stopped when trying to enter or exit the facility, these personnel cannot simply rest as they are constantly subject to picketers yelling, tapping and scraping their picket signs on the bus and peering through the windows of the bus, sometimes with cameras. I have serious concerns that the number of hours these workers are spending at work and on their way to and from work due to the increased delays in crossing the picket line could lead to exhaustion and a serious work place accident.”

Madam Justice Sharma of the B.C. Supreme Court stated that, “In all the circumstances, I find that there is urgency to this application because of the health and safety concerns of the people working for Cascade.”  She added, “It is clear that Cascade may suffer irreparable harm if the injunction is not granted. I am particularly concerned by the escalation of matters since this matter started.”

The employer was therefore entitled to a temporary injunction prohibiting the union members from “blocking, hindering, delaying or obstructing”.

Cascade Aerospace Inc. v. Unifor (Local 114), 2014 BCSC 1461 (CanLII)

Court considers safety, fatigue of replacement workers in granting picketing injunction

“An employee does not necessarily get one free sexual harassment before he loses his job”, says arbitrator in upholding dismissal for Facebook harassment, threats

An arbitrator has upheld the dismissal of a unionized employee for one incident of sexual harassment and threats on Facebook.

After an incident at work in which the grievor was displeased with “X”, a female co-worker, the grievor went home and complained about X on Facebook. Although he did not identify X by name, he referred to what the arbitrator called a “distinctive personal characteristic” of X.  Another co-worker posted a comment on Facebook that suggested performing a physically aggressive act with X’s physical characteristic.  The grievor agreed with the comment and added a further suggestion on Facebook that a violent and humiliating sex act be performed on X.  He then mentioned a cruel nickname associated with X’s personal characteristic.  From start to finish, the grievor’s Facebook session lasted about 2 hours.

Within a few hours, X found out about the Facebook postings.  She complained to the employer, and explained that she had been teased about the personal characteristic when she was a child and was very sensitive about it.  The company then fired the grievor, finding that his comment referring to X was a reference to a violent and aggressive sexual act that was perceived to be a threat of both sexual and physical assault.

Arbitrator Laura Trachuk upheld the dismissal.  She stated that it would be reasonable for a woman reading the Facebook posts to feel threatened. The grievor had suggested, in those posts, that X be sexually assaulted.  He must have anticipated that X would see the posts because his Facebook “friends” included co-workers.  According to the arbitrator, “Making nasty comments on Facebook is not an acceptable response to frustration with a co-worker.”  The references to X’s personal characteristics could only have been made to hurt her.

In closing, the arbitrator stated that, “Some offences are so serious that they warrant discharge.  An employee does not necessarily get one free sexual harassment before he loses his job.”  The grievor was not a long-term employee and the company could have little confidence that he could be trusted never to harass someone else.

United Steelworkers of America, Local 9548 v Tenaris Algoma Tubes Inc, 2014 CanLII 26445 (ON LA)

“An employee does not necessarily get one free sexual harassment before he loses his job”, says arbitrator in upholding dismissal for Facebook harassment, threats

Trucker who punched customer in the mouth was fired for cause

One would think it self-evident that employees who punch a customer’s employee in the face may be dismissed for just cause. But it took an appeal for an employer to win on that issue.

The employee was a truck driver with a small, privately-owned trucking company.   While at a customer’s premises, he got agitated at one of the customer’s employees and punched him in the mouth, knocking out one of his teeth.  The employer dismissed the truck driver and refused to pay his Canada Labour Code termination and severance pay.  The employee then filed a claim for those amounts.

Surprisingly, an Inspector under the Canada Labour Code, who was the first-level adjudicator, decided that the employer did not have just cause for dismissal because the company’s “expectations” had not been clear, there had been insufficient supervision to ensure compliance, and there had been no “clear warnings” as to what would happen if the employee engaged in unacceptable conduct.

The employer appealed to a referee, who disagreed with the Inspector.  The one incident, taken on its own, was just cause for dismissal.  The truck driver showed no remorse for his actions, even at the hearing where he said that the customer’s employee deserved what he got.   The appeal referee found that the truck driver had been evasive and dishonest at the appeal hearing.  The referee held that the punch was unprovoked and constituted just cause for dismissal; this meant that the employee was not entitled to termination pay and severance pay under the Canada Labour Code.

Although the employee had a spotty performance record, including a warning for a previous violent incident at a customer’s premises in which he was alleged to have threatened one of his co-workers with a hunting knife, the appeal referee decided that he did not need to rely on the past incidents, given the gravity of the later assault on the customer.

Our posts on other dismissal-for-violence cases can be viewed by clicking on the “Violence and Harassment” category on our occupationalhealthandsafetylaw.com blog.

Warner v Moore Brothers Transport Ltd., 2014 CanLII 54390 (ON LA)

Trucker who punched customer in the mouth was fired for cause

Despite Having WSIB Coverage, Worker Permitted to Sue “Physically Demonstrative” Executive Officer who “Massaged” her Neck

Physically demonstrative managers beware: your company’s workers compensation coverage does not necessarily protect you from lawsuits by employees.

Even though her employer had Workplace Safety and Insurance Board coverage, an employee was entitled to bring a lawsuit against an executive who “massaged” her neck, allegedly injuring her, Ontario’s Workplace Safety and Insurance Appeals Tribunal has ruled.

However, the Workplace Safety and Insurance Act prohibited her from suing her employer for the neck injuries.

The employee alleged, in her court action, that the executive officer had injured her when he manipulated her head and neck without her consent, thereby committing assault and battery. The worker had a prior neck condition affecting her shoulder.

The executive officer was known to be physically demonstrative and had been warned by the employer’s human resources manager not to touch employees or customers unless it was necessary.

The WSIAT decided that because the employee was in the course of her employment at the time of the injury, she could not sue the employer.

However, she would be permitted to sue the executive in the courts if she could prove that he was not acting in an employment-related capacity when he massaged her neck.

The WSIAT decided, on the facts of this case, that in administering the massage, the executive “deviated substantially from his regular activity as an executive officer”. The conduct had nothing to do with his work duties, which was shown by the warning from the human resource manager. As such, he was not acting in an employment-related capacity when he massaged her neck, and the employee was permitted to sue him in the courts.

Decision No. 727/13, 2014 ONWSIAT 1128 (CanLII)

Despite Having WSIB Coverage, Worker Permitted to Sue “Physically Demonstrative” Executive Officer who “Massaged” her Neck

“Discipline” included “dismissal”: employer did not breach safety-reprisal settlement when it dismissed employee after harassment investigation

An employer that dismissed an employee after a harassment investigation did not breach a previous safety-reprisal settlement with the employee, the Ontario Labour Relations Board has held.  In effect, the employer never promised not to dismiss the employee.

The employee had previously filed a safety-reprisal Application against the employer at the OLRB which was settled. The settlement terms stated that the employee was aware that a harassment complaint had been made against him, that the employer intended to retain an external investigator, and that the investigation “may result in discipline”.

After the harassment investigation was concluded, the employer dismissed the employee. The employee then filed a breach-of-settlement Application with the OLRB claiming that there had been no discussion that “discipline” could include “dismissal”.  He said that, instead, there had been a “common understanding” that some form of discipline may result from the harassment investigation, but that the purpose of the discipline would be to correct any misconduct and ensure adherence to company rules and policies.

The OLRB decided:

“The applicant asserts no facts that would lead the Board to conclude that the parties meant to exclude termination as a possible disciplinary response by Brose.  The applicant does not say, for example, that he received an assurance from Brose in the lead-up to the settlement that Brose would refrain from terminating him, or that the range of any possible disciplinary response would exclude termination.  The plain words of the settlement do not qualify the term ‘discipline’.  And as I have pointed out, Brose’s anti-harassment policy specifically contemplates termination as a possibility where harassment is found to have occurred.”

Interestingly, in coming to its decision that “discipline” included “dismissal”, the OLRB noted that the company’s policy on Harassment in the Workplace stated that employees found to have engaged in harassment “will be subject to discipline up to and including termination” – commonly-used wording in employment policies.  This wording suggested that, at least at this company and at least with respect to harassment, termination was a “subset of dismissal”.

Jeffery v Brose Canada Inc, 2014 CanLII 49707 (ON LRB)

“Discipline” included “dismissal”: employer did not breach safety-reprisal settlement when it dismissed employee after harassment investigation

No OHSA Charges Laid in Death of Alberta Youth Home Worker

A 19-year-old has pleaded guilty to second-degree murder after he stabbed to death a youth worker at a supported independent living facility in Alberta in 2012.  At the time of her death, the worker was working alone overnight.  The boy was a resident of the home, which taught life skills to teens.

The Canadian Press reports that although Alberta Occupational Health and Safety investigated the death and provided the results of its investigation to the Crown, the Crown did not pursue any charges under the Occupational Health and Safety Act (see Teen who stabbed Alberta youth home worker pleads guilty to second degree murder).

According to the Edmonton Journal, the worker’s family has launched a lawsuit against the Government of Alberta in which they allege that her employer “failed to meet the standards of the Occupational Health and Safety Act and ‘intentionally, recklessly and negligently’ failed to make sure” that the worker was safe at work (see Family of slain Camrose caregiver sues Alberta government).

No OHSA Charges Laid in Death of Alberta Youth Home Worker

No damages awarded for unforeseeable workplace assault, but employer ordered to rewrite harassment policy

The fact that an employee had engaged in harassment did not make it foreseeable that he would assault a coworker, a labour arbitrator has held.  However, the company’s harassment policy was deficient and needed to be rewritten.

The decision arose from a union grievance alleging that the employer had not provided an injury-free workplace.  An employee, Kryzanowski, alleged that another employee, Wilson, had struck him in the head from behind with a “rather substantial sized plastic lunch pail”. The union alleged that the company had breached the collective agreement and the Saskatchewan Occupational Health and Safety Act because of its actions or inactions both before and after the incident.

The arbitrator stated that there was no doubt that the assault constituted harassment as defined in the OHSA.  ”A serious physical assault, such as this one, is perhaps the most profound single incident of harassment that exists.”  However, according to the arbitrator, the core question was whether the company, through its management personnel and supervisors, knew or should have known that Wilson was a physical threat to other employees and failed to take steps to prevent it.

The arbitrator decided that although Wilson had demonstrated “meanness and bullying” behaviour towards Kryzanowski through numerous disrespectful comments, and the company’s management were sufficiently aware of Wilson’s conduct to know that he was mean-spirited and had anger problems, none of his previous actions were physical alterations and there was no evidence that he was on the verge of physically attacking a fellow employee.  The assault was not foreseeable by the company.

As such, Kryzanowski was not entitled to damages for the assault.  However, the company was ordered to keep Wilson and Kryzanowski on different shifts and direct Wilson to have no contact with Kryzanowski.

Lastly, the arbitrator found that the company’s harassment policy did not comply with the OHSA and regulations in that it was not kept current and did not include specific contents required by the regulations.  The arbitrator ordered the company to “take immediate steps to comply with the Occupational Health and Safety Act by writing its harassment policy to be compliant with the Act and regulations.”

Shaw Pipe Protection Limited v Construction and General Workers’ Local Union No 180, 2013 CanLII 94439 (SK LA)

No damages awarded for unforeseeable workplace assault, but employer ordered to rewrite harassment policy

“Don’t worry about me, I carry weapons”: employee’s violent statements warranted serious discipline but not dismissal

An electrician’s comment, “Don’t worry about me, I carry weapons” and “it would really feel good to kill something today” constituted workplace violence but did not warrant dismissal, the Ontario Labour Relations Board has held.

The employee had a strained relationship with an Electrical Foreman.   When a female co-worker noticed her in distress about the presence of the foreman, she offered to accompany the employee to the washroom. The employee then made the “weapons” comment, afterwards saying that she was referring to the tools that she carries such as an electrician’s knife and spud wrench, but that she would never harm anyone except to defend herself.  Later in the day, in a meeting with her supervisor and union representatives, she complained again about the foreman and said that she “had a knife”.

An investigator concluded that the employee had made “violent comments” and was emotionally unstable.

The OLRB decided that the employee’s comments “could reasonably be interpreted to constitute a threat to exercise injurious or potentially injurious physical force.”  However, there was nothing premeditated about the threats and there was no previous pattern of threatening conduct on her part. She was “guilty of having engaged in violent threats, but in comparing them with the kinds of behaviour in the cases cited to me by both parties, her comments were at the lower end of the spectrum.” 

The OLRB did not believe that the employee was likely to repeat “such extreme conduct” or that she was a threat to the safety and well-being of other employees.  The dismissal was, therefore, excessive.

Canadian Union of Skilled Workers v Hydro One Inc, 2014 CanLII 44660 (ON LRB)

“Don’t worry about me, I carry weapons”: employee’s violent statements warranted serious discipline but not dismissal

Alleging panic attacks due to mistreatment at work, employee’s HRTO application dismissed for duplicating court action

Employees may not raise the same human rights issue before the Human Rights Tribunal of Ontario and the courts, a recent HRTO decision confirms.

The employee had commenced a court action in which he claimed that he was a person with a disability and as a result he experienced panic attacks.  He alleged that he had experienced panic attacks in part because of mistreatment at work.  He made essentially the same allegations in a disability-discrimination case at the HRTO, claiming damages for alleged violations of the Human Rights Code in both cases.

The HRTO dismissed his human rights Application, deciding that because the employee had started a court action claiming damages for alleged violations of the Human Rights Code and that court proceeding had not been finally resolved, section 34 of the Human Rights Code required that the HRTO proceeding be dismissed.  Duplicative proceedings were not permitted.

Toker v. 1044765 Ontario Inc., 2014 HRTO 1159 (CanLII)

Alleging panic attacks due to mistreatment at work, employee’s HRTO application dismissed for duplicating court action

Reprimands for “violation of basic safety protocols” were not discriminatory

After failing in a harassment grievance that was based on the Occupational Health and Safety Act, an employee has failed in his bid to persuade the Human Rights Tribunal of Ontario that safety-related discipline against him was discriminatory under the Human Rights Code.

The employee’s union grievance had alleged bullying and harassment against the supervisor under the Occupational Health and Safety Act; the grievance had been denied.

In his Human Rights Tribunal application, the employee alleged that, in one incident, his supervisor yelled at him about wearing proper safety equipment because he did not have his safety boots on. The employee felt that the safety boots were not necessary.  After another incident, the supervisor gave him a letter about the need to wear appropriate safety equipment.  The employee claimed that, in yet another incident, the supervisor had berated him, called him stupid, and threatened him with being fired.

The Human Rights Tribunal stated that it does not have a general power to deal with allegations of unfairness.  The Tribunal found no link between the alleged actions of the supervisor and any prohibited ground of discrimination under the Human Rights Code (such as sex, race or disability).  It was clear that the relationship between the employee and his supervisor was fraught with tension, and that he had been reprimanded for violation of basic safety protocols, but there was no cogent evidence to prove discrimination.

With increasing workplace attention on harassment, some employees are looking to tribunals such as the Ontario Labour Relations Board and Human Rights Tribunal of Ontario for assistance.  In the case of the Tribunal, the complaint will fail unless the employee can prove that he or she suffered discrimination or harassment because of sex, race, disability or another prohibited ground of discrimination under the Human Rights Code.

Sfara v. Toronto (City), 2014 HRTO 178 (CanLII)

 

Reprimands for “violation of basic safety protocols” were not discriminatory

“Disgruntled and aggressive clients” posed safety threat under OHSA

An employee who was fired after complaining to the Ministry of Labour that she felt threatened by “disgruntled and aggressive clients” was entitled to damages for the retaliatory discharge, the Ontario Labour Relations Board has decided.

The employee worked for an investment/marketing company.  She tried to speak with a company manager about her concerns with aggressive clients and about having the company develop procedures to deal with matters such as violence and harassment. The manager refused to entertain the suggestions.

The employee then contacted the Ministry of Labour and told the MOL that she felt threatened in the workplace and that her employer had no policies to deal with her concerns.  After a co-worker contacted the MOL with concerns, an MOL inspector came to the workplace and ordered the employer to prepare a violence and harassment policy.  The next day, the company dismissed the employee.

The OLRB accepted that the threat posed by “disgruntled and aggressive clients” was a workplace safety issue under the Occupational Health and Safety Act, and that the employee had characterized it as such when she had complained to management.  Also, in the absence of an explanation by the employer (the employer did not attend the OLRB hearing), the OLRB was satisfied that at least part of the company’s reason for dismissing her was her safety complaint.  As such, her termination was an illegal reprisal under the Occupational Health and Safety Act.  She found employment quickly, and was entitled to damages in the amount of four weeks’ wages.

Abigail C de los Santos Sands v Moneta Marketing Solutions Inc, 2014 CanLII 33527 (ON LRB)

 

“Disgruntled and aggressive clients” posed safety threat under OHSA

Arbitrator may order change to hours, location of doctor who sexually-harassed hospital nurse

Where a doctor has sexually harassed a nurse, a labour arbitrator has authority to decide how close the doctor should be able to work with the nurse, and under what conditions, an Ontario arbitrator has decided.

The nurse claimed that she was sexually harassed by the doctor. The hospital stripped the doctor of his privileges so that he could not, at present, practise at the hospital. The union brought a grievance on behalf of the nurse, claiming relief including an assurance from the hospital “that Dr. G. will not be allowed to return to the workplace.”  The hospital and the doctor claimed that the arbitrator had no authority to order that relief.

The arbitrator decided that he had jurisdiction to determine the essential question: how close Dr. G. should be able to work with the nurse, and under what conditions.  That was a labour relations question arising directly from the collective agreement which guaranteed a safe workplace free from harassment.

The arbitrator held that although the Health Professionals Appeal and Review Board had exclusive jurisdiction over the doctor’s privileges at public hospitals, the arbitrator had authority to determine how close the doctor should be able to work with the nurse, and under what conditions.  This may involve a decision on whether the nurse and doctor should work at different sites or in different locations, and whether the doctor should work at the hospital at all when the nurse is working there.

William Osler Health System v Ontario Nurses’ Association, 2013 CanLII 72709 (ON LA)

 

Arbitrator may order change to hours, location of doctor who sexually-harassed hospital nurse

Supreme Court denies chronic stress WCB claim after employee reacted to disciplinary letter

The Supreme Court of Canada has denied an employee’s claim for workers’ compensation benefits for “chronic stress” which he said resulted from a disciplinary letter that followed years of conflict over another workplace issue.

The employee, a park warden with Parks Canada, had for years argued that park wardens should be armed when carrying out law enforcement duties. He filed a health and safety complaint which generated internal complaint processes and a number of court cases and appeals.

Parks Canada received a request under access to information legislation and instructed the employee to disclose certain data on his work computer so that it could comply with the request. Parks Canada was not satisfied that he responded properly, so it gave him a letter notifying him that he would be disciplined if he did not provide an adequate response to the access to information request.

The employee already had a written reprimand on his file and feared that the next discipline would be dismissal. He claimed that the letter triggered a psychological condition that followed years of conflict over the health and safety issue. He filed a claim with the Alberta Workers’ Compensation Board. The relevant Alberta Workers’ Compensation Board policy stated:

11. When does WCB accept claims for chronic onset stress?

As with any other claim, WCB investigates the causation to determine whether the claim is acceptable. Claims for this type of injury are eligible for compensation only when all of the following criteria are met:

• there is a confirmed psychological or psychiatric diagnosis . . .

• the work-related events or stressors are the predominant cause of the injury; . . .

• the work-related events are excessive or unusual in comparison to the normal pressures and tensions experienced by the average worker in a similar occupation, and

• there is objective confirmation of the events.

In addition to the duties reasonably expected by the nature of the worker’s occupation, normal pressures and tensions include, for example, interpersonal relations and conflicts, health and safety concerns, union issues, and routine labour relations actions taken by the employer, including workload and deadlines, work evaluation, performance management (discipline), transfers, changes in job duties, lay-offs, demotions, terminations, and reorganizations, to which all workers may be subject from time to time. [pp. 5-6]“

There was no dispute that the employee had met the first two criteria under the policy to receive WCB benefits for chronic stress: that there was a confirmed psychological or psychiatric diagnosis, and that the work-related events or stressors were the predominant cause of the injury. However, the employer disputed that (1) the work-related events were excessive or unusual in comparison to the normal pressures and tensions experienced by the average worker in a similar occupation, and (2) there was objective confirmation of the events.

The Supreme Court of Canada decided that it was open to the Alberta Workers’ Compensation Board to find that the “predominant cause” of the employee’s psychological injury was his reaction to the letter, and that such request was not unusual in terms of normal pressures and tensions in a similar occupation. Therefore, the WCB’s decision to deny workers’ compensation benefits to the employee was reasonable.

Martin v. Alberta (Workers’ Compensation Board), 2014 SCC 25 (CanLII)

Supreme Court denies chronic stress WCB claim after employee reacted to disciplinary letter

Threat, assault on supervisor were just cause for dismissal at isolated mine in NWT with “zero tolerance” violence policy

An employee at an isolated camp in the Northwest Territories who assaulted and threatened his supervisor was dismissed for just cause, an adjudicator has decided.

The employee was an equipment operator at a mine site.

The evidence was that the employee and supervisor got into an altercation “not directly related to work issues”.  All witnesses said that the employee pushed the supervisor three times.  Two witnesses said that the employee also threw a cup or bottle of water at the supervisor. Several coworkers were required to restrain the employee.

The day after the incident, the employee gave a statement in which he said, “.  .  . I didn’t make threats but I did make a promise.  I know where the prick lives and we will see each other.” The employer fired him and claimed just cause.

The employee filed a claim for termination pay under the NWT Employment Standards Act.  An Employment Standards Officer decided that he was dismissed for just cause and thus was not entitled to termination pay. The employee appealed, and an adjudicator agreed that he had been dismissed for just cause.

The adjudicator stated that the employee had agreed to the zero-tolerance violence policy and had disregarded that policy.  The workplace was an isolated camp setting and the assault and further threats of violence were in clear violation of that policy.  Although the employee claimed that his supervisor had not been treating him properly, there were other alternatives to violence.

Therefore, the adjudicator decided that the single incident of the assault and threats was just cause for dismissal.

I & D Management Services Ltd v Mercredi, 2013 CanLII 89793 (NWT LSB)

 

Threat, assault on supervisor were just cause for dismissal at isolated mine in NWT with “zero tolerance” violence policy

Adjudicator’s award was shaming of union officials for “ongoing campaign”, harassment of member which breached duty of fair representation

A union member has won a legal battle against local union officials after they engaged in a “campaign” against him that attacked his credibility and resulted in him being subjected to a harassment complaint. 

The employee, Benoit, worked in a correctional institution. He sent an e-mail to an Assistant Warden expressing concern that “CXJ”, a female correctional officer, was not wearing proper safety equipment.  The Assistant Warden copied Trimble, a correctional officer at the institution and an executive on the union local, on her response.

Trimble forwarded the e-mail chain to two other local union officials, Smith and Clarke, with disparaging commentary about Benoit.  Unfortunately for Benoit, Smith was in an intimate relationship with CXJ.  Trimble forwarded the entire e-mail string to CXJ, who evidently became upset and filed a harassment complaint against Benoit, which was eventually dismissed.

Benoit confronted Trimble, but Trimble denied forwarding the e-mail to CXJ.  Subsequently Trimble sent a disparaging e-mail to Benoit which Trimble printed to all printers in the institution, apparently so that all bargaining unit members could read it.

Benoit later filed a harassment complaint against Trimble, which the employer determined was founded.

The adjudicator, a member of the Public Service Labour Relations Board, found that the union officials engaged in an “ongoing campaign” to discredit and demean Benoit.  Trimble’s conduct was the most egregious.  Smith, the intimate partner of CXJ, had been in a conflict of interest, and Clarke had the ability to stop the campaign but did not.  As a result, Benoit ceased seeking assistance from the union.  The union officials chose sides against Benoit, were biased against him, and were not acting in good faith as representatives of the union. They each breached their duty of fair representation to him.

The adjudicator ordered that the union pay $2,000.00 in damages to Benoit; that the adjudicator’s decision be posted on all bulletin boards in the institution for 12 months; that the decision be posted on the union’s website for 3 months; and that the decision be sent to each member of the institution accompanied by a letter advising that the adjudicator determined that the union breached its duty of fair representation. This was a significant “shaming” of the local union and the three officials.

This decision illustrates that it is not only employers that can be liable for harassment; union officials must avoid harassing conduct and must represent members fairly.

Benoit v. Trimble et al., 2014 PSLRB 46 (CanLII)

 

 

 

Adjudicator’s award was shaming of union officials for “ongoing campaign”, harassment of member which breached duty of fair representation

Professional engineer with “significant safety background” who sent “abhorrent e-mails”, loses safety-retaliation case

A professional engineer who engaged in an “over the top, aggressive” argument with an established member of management, has lost his safety-retaliation case at the Ontario Labour Relations Board. Although employees who raise safety issues are entitled to protection, they must do so respectfully, the OLRB stated.

The employee was hired as the company’s Business Operations Manager. He had a strong health and safety background. One month after he started working, he joined the joint Health and Safety Committee. He got into a significant conflict with the company’s “National Manager, Occupational Health and Safety”, which included a heated e-mail exchange. In one e-mail, he wrote:

“I have been beaten up, insulted and ripped apart over safety. Never in my 16 year Manufacturing Engineering career have I encountered such resistance on safety from any manager never mind from a Safety Manager himself.”

In another e-mail, he wrote, “Do not threaten me again. Ok. One more time and it’s considered harassment!”

The Ontario Labour Relations Board held that “the applicant was mostly (although not entirely) to blame for the inappropriate tone of the email exchange. Despite being on the job for barely a month, he seemed intent on creating a confrontation with the company’s Health and Safety Manager. He was engaged in an over the top, aggressive argument with an established member of management.”

The OLRB held that the applicant had also made false allegations, yelled and swore at another company manager, and “exasperated” the company’s management.

According to the OLRB, “the normal workplace rules regarding decorum and respectfulness apply” when employees raise safety issues, and the employee had “crossed lines in this case”. The OLRB decided that the company had terminated his employment “because he acted in a disrespectful and threatening manner to other members of management and for no other reason”.

Lastly, the employee was still in his probation period when fired; was not truthful at the OLRB hearing; and had sent “abhorrent” e-mails – under an alias – to management shortly after he was fired, in which he invited one manager to a “street fight” with him and said it was “payback time”. Therefore, the OLRB did not “exercise any discretion” to substitute a lesser penalty than dismissal.

Kalac v Corrosion Service Ltd, 2014 CanLII 15044 (ON LRB)

Professional engineer with “significant safety background” who sent “abhorrent e-mails”, loses safety-retaliation case

Not Harassment to Remind Nurses of Professional Obligations, Arbitrator Says

It was not “harassment” for a manager to mention the College of Nurses of Ontario and remind nurses of their professional obligations, an arbitrator has held.

The nurses worked at the Central East Correctional Centre.  In a meeting, the manager reminded nurses that they should not be sleeping or watching movies during the night shift, and discussed changes to the “break routine”.  Some nurses appeared to be resisting the manager’s message regarding sleeping and watching movies.  One nurse asked a “question” about whether nurses should respond to emergencies during unpaid breaks, which the arbitrator took as a threat of retribution in response to changes to the breaks.  The manager reminded them of their professional obligations as nurses and referred to the College of Nurses of Ontario.

The nurses complained that the mention of professional obligations, and of the College of Nurses of Ontario, was threatening and amounted to harassment.  They argued that it carried the implication that the nurses could face professional penalties for resisting changes to break times.

The arbitrator disagreed, and was critical of the nurses:

“The union asserted that the employer’s references to the [College of Nurses of Ontario] were wholly unnecessary, and that the grievors were fully aware of, and did not need to be reminded of their professional responsibilities.  Given the comments made in response to both issues, this was apparently not the case.  If they had been aware, or if that awareness had been in their minds during the meeting, it is unlikely that they would have reacted by defending the right to sleep while on duty or raising the issue of not responding to emergencies because they did not find favour the employer’s position with respect to breaks.  To my mind, the employer’s reminder of the professional obligations was justified and apt.”

In conclusion, the arbitrator held that the nurses had not been “threatened, intimidated or harassed”. Instead, the “employer was engaged in an attempt to manage improper workplace behaviour”.  The reference to the College of Nurses of Ontario was an appropriate answer to the inappropriate “question” that carried the implication that nurses might not respond to emergencies on unpaid breaks.  The nurses’ reaction was “irrational and cannot be explained on the basis of the employer’s approach to the meeting.”

This decision is another reminder that an employer’s legitimate management of the workplace is not harassment.

Ontario Public Service Employees Union (Marsh et al) v Ontario (Community Safety and Correctional Services), 2014 CanLII 13355 (ON GSB)

Not Harassment to Remind Nurses of Professional Obligations, Arbitrator Says

Not Quite an Eye for an Eye – Judge rules that Employee’s “Kick in the Butt” Excuses Co-Worker’s Punch in the Mouth

Does a “kick in the butt” excuse a punch in the mouth? That was the question facing the Court in the recent case of Li v Furguson, 2013 CanLII 91746 (Ont. Sm. Cl. Ct.).

Peng Li and Winston Furguson worked in the shipping and receiving department of a furniture company. Li and Furguson’s coexistence was initially uneventful; however, their relationship had begun to disintegrate following allegations by Li that Furguson was stealing from the company.

On April 19, 2011, things between Li and Furguson reached a boiling point. After searching for Furguson throughout the warehouse, Li finally found his target and confronted him. What happened next was a source of disagreement between the parties, although the judge adopted the following facts. Li began speaking very closely to Furguson; so close that spit was transferred to Furguson’s face, albeit unintentionally. As Furguson tried to break free, Li kicked Furguson in the “butt” with his steel-toe boots. Furguson then wheeled and punched Li twice – one blow was inconsequential, the other was not as it resulted in Li incurring over $7,000.00 in costs for restorative dental services.

At trial, Li argued that he was entitled to damages from Furguson for the tort of battery. However, in the judge’s view, Li’s actions amounted to implied consent to the battery:

Having insulted, berated and confined a person at close quarters, then scuffled with them and kicked them I cannot see how a reasonable person could maintain that a punch or two in return was beyond their reasonable contemplation as being with the scope of what they had implicitly consented to.

 
In addition, the judge held that Li had provoked Furguson by kicking him. Although provocation was not a complete answer to Li’s claim of battery, it nonetheless operated to mitigate the damages that Li had in turn claimed.

In light of these facts, the judge dismissed Li’s claim in its entirety.

It is important to note that while Li had originally brought an action against his employer in which he made a number of claims, including one for “wrongful dismissal”, this action was discontinued before trial. Regardless, apart from the civil liability above, the altercation between Li and Furguson would certainly attract the attention of any employer’s workplace violence policy and potentially lead to discipline.

Li v Furguson, 2013 CanLII 91746 (Ont. Sm. Cl. Ct.)

Not Quite an Eye for an Eye – Judge rules that Employee’s “Kick in the Butt” Excuses Co-Worker’s Punch in the Mouth