1. Skip to navigation
  2. Skip to content
  3. Skip to sidebar

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

No punches thrown, but employee properly dismissed for yelling, swearing and abusive conduct

An employee need not physically assault a co-worker in order to be dismissed for workplace violence, an arbitrator’s decision shows.

The employer had 8 “Golden Rules” of workplace health, safety and environmental standards.  The employee had signed a document that said he understood that failure to comply with the Golden Rules and all other posted plant safety rules “may result in disciplinary action up to and including termination”.

Less than 3 months later, the employee got into an altercation with a co-worker.  There was yelling, swearing and abusive language.  A third employee intervened to separate the two employees when it looked like they were about to hit each other.

The employer’s investigation found that the employee had called the other employee, who was said to have a heavy build, a “fatass” and made a derogatory reference to the other employee’s sexual orientation.  When the third employee tried to break up the altercation, the employee continued to argue with and antagonize the other employee.  Also, both men had removed their hard hats, indicating that they were preparing to hit each other with their fists.

The union argued that this incident of fighting and violence was at the “low end” of the spectrum.  The union noted that there was no physical contact between the fighting employees; “it was all words”.  Also, there were no physical injuries.

The arbitrator disagreed, finding that the employee chose to use words that directly attacked the other employee’s physical appearance and his sexual orientation.  This was “over and above both employees’ use of more traditional, garden-variety, profanities”.  Further, “particularly hurtful comments directed at an individual’s appearance can, even in the absence of physical violence, warrant termination of employment”.  Further, the employee continued to “egg on” the other employee after the third employee tried to break up the altercation.  Lastly, the plant operated around the clock and the employer required all employees, who had been trained on its workplace violence policy, to exercise some degree of self-restraint.  The employee had, instead, tried to escalate to physical violence and likely would have done so if the third employee had not intervened.

The employee had only 15 months of service, had received extensive training on the employer’s workplace violence policy and harassment policy, and had been given a copy of the employer’s “Golden Rules”. He showed very little insight into how his own behaviour was a contributing factor.  He did not see himself as accountable for his own actions.  He did not apologize until the day of the hearing.

The arbitrator upheld the dismissal.

Unifor Local 80-0 v Certainteed Insulation Canada, 2015 CanLII 600 (ON LA)

No punches thrown, but employee properly dismissed for yelling, swearing and abusive conduct

Run over by shoplifter in parking lot, retail employee may sue employer and supervisor despite having WSIB coverage

A retail employee who helped pursue a shoplifter, in violation of the employer’s workplace violence policy, was not entitled to WSIB benefits and could sue the employer and a supervisor in the courts for her injury.

The employee was standing outside the grocery store, where she worked, on her break. The supervisor, who had just finished his shift, followed a suspected shoplifter to his van.  The employee also followed.  The supervisor confronted the shoplifter who accelerated away and ran over the employee with both his front and rear driver-side wheels.  The employee was hospitalized and had not yet returned to work.

The employee sued the employer and the supervisor seeking damages.  The employer applied to the Workplace Safety and Insurance Appeals Tribunal for a declaration that the employee’s right to sue was taken away by the Workplace Safety and Insurance Act because she had Workplace Safety and Insurance Board coverage.

The WSIAT held that the employee’s injury did not arise out of and in the course of her employment.  It was important that the employee, in participating in the confrontation of the shoplifter, had violated both the employer’s “Non-Pursuit Policy” and Workplace Violence Policy which prohibited most employees from pursuing shoplifters.  Further, she was on a break at the time of the incident.  Pursuing shoplifters was not one of her duties and was not even incidental to her duties.  Her pursuit of the shoplifter was of no benefit to the employer because it violated company policy and made her unavailable to return to her regular duties.  For similar reasons – plus the fact that he had finished his shift – the supervisor was found not to be in the course of his employment at the time of the accident.

As such, the employee was entitled to sue both the employer and the supervisor in the courts.

It is interesting to note that the employee’s own misconduct (violating the company’s non-pursuit policy) was one of the factors that took her “out of the course of” her employment and permitted her to sue the employer instead of claiming WSIB benefits.

Guizzo v. Metro Ontario Inc., 2014 ONWSIAT 2526

Run over by shoplifter in parking lot, retail employee may sue employer and supervisor despite having WSIB coverage

“If you think your salary is low . . .”: employer’s presentation was “offensive, distasteful and inappropriate as a motivational tool”, but not illegal

An adjudicator has criticized an employer’s motivational presentation as “offensive, distasteful and inappropriate as a motivational tool”, but found that it was not illegal.

The presentation was delivered by a Regional Manager with the Ontario Ministry of Transportation to Transportation Enforcement Officers employed by that Ministry.  It was called, “New Year New Outlook”.

The presentation contained “graphic imagery of poverty in the developing world” and compared this imagery to “trivial” problems in the developed world. One slide asked, “If you think your salary is low, how about her?” accompanied by a photo of a child.  Another slide asked, “Why do we complain?” while the next slide stated, “Let’s Have New Expectations!”

Some employees, noting that the collective agreement was set to be negotiated that year, felt that the presentation was a tool to disincentivize the union from bargaining an advantageous agreement for them.  One employee said she felt that the presentation was calling her and other employees lazy and insinuating that they demanded too much.  Employees felt that the presentation was condescending and presumptuous and suggested that they were lucky to have jobs.

The union argued that since the majority of the images of poverty in the developing world showed people of colour, the use of those images violated the Human Rights Code.  The adjudicator, a member of the Grievance Settlement Board, noted that none of the employees asserted that they have racial characteristics that were protected under the Code; hence, there was no discrimination proven.

The union also argued that the presentation constituted harassment under the Human Rights Code.  The adjudicator rejected that argument because the union had not even “asserted that the harassment alleged to have taken place was because of a protected characteristic possessed by any of the” employees.

Lastly, the adjudicator decided that there were no facts asserted that showed that any of the employees suffered any discriminatory treatment because of their union membership or activity.  The employer’s message that they should be content with their employment terms was not discriminatory because of their union membership.

The adjudicator went on to state that by deciding that the presentation did not violate the collective agreement or the Human Rights Code, he was not saying that the presentation was “fine”.  Instead, he stated:

“The Board’s acceptance for purposes of this motion that the presentation was offensive, distasteful and inappropriate as a motivational tool, cannot possibly lead to a finding that any of the collective agreement or statutory rights of the grievors were violated . . . The dismissal of these grievances on the basis of absence of jurisdiction is certainly not, and ought not be seen as, a finding by the Board that the employer conduct was ‘fine’ or that the Board endorses such conduct.  The fact that 39 individuals found the presentation to be offensive to such an extent to cause them to grieve, speaks for itself. The employer, through communications of regret/apology appears to have realized that the presentation was negatively received by a large number of employees.”

The grievance against the presentation was therefore dismissed.

Ontario Public Service Employees Union (Brydges et al) v Ontario (Transportation), 2014 CanLII 74778 (ON GSB)

“If you think your salary is low . . .”: employer’s presentation was “offensive, distasteful and inappropriate as a motivational tool”, but not illegal

False assault allegation against supervisor was just cause for dismissal: video evidence was conclusive

An employee who filed a written complaint, falsely alleging that his supervisor deliberately ran into him with a sharp blow from his shoulder, was dismissed for cause, an arbitrator has held.

Unfortunately for the employee, video evidence showed his allegation to be false.

The employee, a warehouse worker, had seven years of service and had received two prior suspensions in the previous twelve-month period.

The supervisor denied the allegation, and no witnesses supported the employee’s version of events.  Video evidence showed the corridor at the time when, according to the employee, he was assaulted.  The video showed that no such assault took place.

The arbitrator held that the evidence was overwhelmingly against the employee’s account of what had occurred. In particular, the video showed that there was no contact.  The employee had falsified the allegation against his supervisor.  This was very serious, as the allegation was that the supervisor had committed assault.  That allegation, if accepted, “could have extremely negative consequences” for the supervisor including possible criminal charges. The allegation was calculated to harm the supervisor.  The making of the allegation was so serious as to “undermine the possibility of any ongoing employment relationship”.

As such, the employee was dismissed for just cause.

DB Ontario Inc. v United SteelworkersLocal 3327, 2014 CanLII 77057 (ON LA)


False assault allegation against supervisor was just cause for dismissal: video evidence was conclusive

OLRB Agrees to Hear Another Harassment Case

The debate continues as to whether the Ontario Labour Relations Board has jurisdiction to hear harassment-reprisal complaints under the Occupational Health and Safety Act, but another Vice-Chair of the OLRB has said “yes”.

As we wrote in another post, an earlier OLRB decision called Investia had suggested that because the OHSA does not require employers to prevent harassment – but only to have a harassment policy and program, to provide “information and instruction” to employees on harassment, and to post the policy – the OHSA does not protect employees who were dismissed for complaining about harassment.

Recent decisions of the OLRB, and now the OLRB’s November 21, 2014 decision involving Celco Inc., have come to the opposite conclusion.  In the Celco case, an employee alleged that she had experienced continuing workplace harassment from a co-worker and had complained to the employer about it several times.  She said that the employer took no action, but rather dismissed her from her employment the same day she complained to the employer about harassment.

Vice-Chair Derek Rogers of the OLRB stated:

“The applicant has asserted that she sought to have the responding party investigate and deal with her complaints and that she sought enforcement of the Act by making her reports.  For the purposes of the responding party’s motion and at this stage of the proceedings, that is sufficient in the Board’s view . . . According to the applicant’s allegations, there was a very close temporal nexus between the applicant’s raising issues about what she alleged as ‘workplace bullying’ by a co-worker (by then promoted to a supervisory position over the applicant) and the notification by Celco that the applicant’s employment was terminated.  The timing of the ‘without cause’ termination of employment and the allegation that there was no rationale offered other than that the applicant was not happy at Celco are sufficient in the Board’s view to support the proposition that Celco should be called upon to explain its position regarding the employment termination.”

As such, the OLRB permitted the employee to advance her complaint that she was retaliated against for complaining about harassment, and that that retaliation violated the OHSA.  The OLRB rejected the employer’s request to dismiss the complaint at an early stage.

One lesson from the decision is that wherever there is a risk that the employee will allege that her dismissal was in retaliation for her raising safety concerns, the employer should, in the termination letter, provide a clear and supportable non-retaliatory rationale for the termination.  By not offering a rationale, the employer may encourage a presumption that the employee was dismissed in retaliation for raising safety issues.

Ram v Celco Inc., 2014 CanLII 74839 (ON LRB)

OLRB Agrees to Hear Another Harassment Case

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