Canadian Employment Law Today

How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 ©2019 HAB Press, a subsidiary of Key Media All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechani- cal, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. GST #897176350 Emplo y ment Law Today www.employmentlawtoday.com Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE info@habpress.ca www.employmentlawtoday.com HAB PRESS, A SUBSIDIARY OF KEY MEDIA 312 Adelaide Street West Suite 800, Toronto, ON M5V 1R2 President: Tim Duce Editor: Jeffrey R. Smith Email: jeffrey.smith@habpress.ca Sales Manager: Paul Burton Email: paul.burton@habpress.ca Phone: (416) 649-9928 Marketing Co-ordinator: Keith Fulford Email: keith.fulford@habpress.ca Phone: (416) 649-9585 HAB Press Ltd. Emplo y ment Law Today Canad ad ad ad ad ad a ian an an www.employmentlawtoday.com YOU MAKE THE CALL Was dismissal inappropriate? OR Did the employee deserve to be fi red? An employment relationship beyond repair? THIS EDITION of You Make the Call features a mechanic who was fi red for making an explicit gesture behind a cus- tomer's back. Paolo Cuconato, 49, was a senior automo- tive mechanic for Parker Auto Care, an auto repair shop in Ottawa. He began his employ- ment with Parker Auto around 1991 and had no discipline or warnings on his record over the next 25 years. e company had no writ- ten disciplinary policies or training for its employees on workplace harassment and violence. On Aug. 23, 2016, Cuconato made a sexu- ally explicit gesture while a female customer was in the shop. e customer's back was turned so she didn't see the gesture, nor did she complain about it. However, a co-worker saw the gesture and, after the customer left, reported it to the manager. When the manager accused Cuconato of making the gesture behind the customer's back, Cuconato initially denied it because he wasn't sure to what the manager was refer- ring. However, the manager showed him a security video he had recorded on his cell- phone of Cuconato making a gesture. e video was of poor quality and Cuconato argued the gesture wasn't sexual in nature but instead it was intended to be a "saluting" gesture. However, the manager told him to immediately "go home and think about what you want to do." e manager also said if Cuconato refused to acknowledge making a sexually explicit gesture, the mechanic would have to either resign or be fi red — and if Cuconato chose the former, the manager wouldn't tell Cuco- nato's wife about the incident. e next day, Cuconato arrived at the shop and informed the manager he refused to resign. Parker Auto terminated his em- ployment for making the gesture near a cus- tomer and breaching the duty of faithfulness and honesty by refusing to acknowledge his misconduct. Cuconato later acknowledged that the gesture he made was, in fact, sexual in nature. IF YOU SAID dismissal was inappropriate, you're right. e court found that while the gesture itself may not have been intended by Cuconato to be dishonest, his initial denial about making the gesture and then disputing that it was sexual in nature showed a certain level of dishonesty — especially after Cuco- nato eventually acknowledged it was sexual. However, it wasn't appropriate to char- acterize Cuconato's denial as persistent, as he claimed he initially denied it because he wasn't sure what the manager was talking about. en, when they viewed the security video, it wasn't clear enough to make out the specifi c gesture. Finally, there was no further discussion about the video or another denial the next day — Cuconato said he wouldn't resign and the manager terminated his em- ployment. As a result, Cuconato's denial was limited to the initial meeting following the incident, said the court. e court noted that the incident on its own was worthy of suspension, given the risk that the customer could have seen it. However, by itself it wasn't serious enough to justify dismissal — it was Cuconato's denial that Parker Auto used to justify dismissal. However, as the court mentioned, it wasn't a persistent denial and Cuconato later tried to explain why he denied making the gesture. As a result, the court found that the miscon- duct wasn't a very serious form of employee dishonesty and it "appears to have been an isolated and momentary lapse in a long, un- blemished career." e court also found that Parker Auto suf- fered no harm to its reputation because of the gesture, as no customers observed it. In addition, there were no written harassment or disciplinary policies, which it made it dif- fi cult for Parker Auto to demonstrate Cuco- nato's misconduct "struck at the heart of the employment relationship," said the court. e court determined that Cuconato's misconduct wasn't serious enough to de- stroy trust with his employer or indicate he no longer intended to be bound by his em- ployment contract. As a result, Parker Auto wrongfully dismissed him. "In my view, considering the limited ex- tent and isolated nature of the incident, Mr. Cuconato's long and unblemished record of service prior to this incident, a workplace en- vironment that did not include written disci- plinary policies and in which the employer failed to provide training to its employees on issues of harassment and workplace vio- lence, dismissal was a disproportionate re- sponse," the court said. e court found Cuconato was entitled to 20 months' wages in lieu of notice plus 10 months of health care benefi ts. Cuconato found a new job in November 2016, so mi- nus his mitigation income from that, Parker Auto was ordered to pay $56,413.15. For more information see: • Cuconato v. Parker Auto Care Ltd., 2018 ONSC 2803 (Ont. S.C.J.).

• Cover