Canadian Employment Law Today

April 22, 2020

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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Canadian HR Reporter, 2020 Canadian Employment Law Today Canadian Employment Law Today | | 7 More Cases More Cases yard. His shift began at 6 a.m., but, some- times when he arrived to start work, the person who drove his truck the night before hadn't arrived yet — sometimes coming as much as four hours late. The company didn't pay him until he was driving, so on these oc- casions he went home. On the days Letourneau went home be- cause his truck was late, he didn't let anyone at Westcan know because dispatchers didn't arrive until 8:30 a.m. and there was no one at the main office to answer his calls. He mentioned that, at his previous job with an- other trucking company, the owner would call him if his truck was going to be late. The manager acknowledged that Westcan didn't contact Letourneau when his truck wasn't coming in on time, but his unan- nounced absences disrupted the company's operations. When Letourneau's truck ar- rived, another driver had to be reassigned to take over Letourneau's route. This often re- sulted in late deliveries to customers. In ad- dition, the manager had to take time to find Letourneau and find out why he was absent. Worker commented on punching manager In October 2018, the manager scheduled a meeting with Letourneau to discuss his at- tendance issues. Before the meeting, another Westcan employee contacted the manager to report that he had met Letourneau after the end of his shift. To the employee, Letourneau seemed to have had a couple of drinks and started talking about the manager and his problems with him. During the conversa- tion, Letourneau commented that "someone should punch [the manager] in the head." At the meeting on Oct. 30, the manager gave Letourneau a written warning for his absenteeism. He didn't discuss the com- ment as he hadn't investigated, but he didn't report it to human resources. In December 2018, Letourneau's manager told him that the truck he normally drove was being transferred to another driver. It was one of two trucks the company had with sleeper cabs and the other one was be- ing retired due to mechanical problems. The driver of the other one did overnight deliver- ies and Letourneau didn't, so it made sense to Westcan to make the transfer. Letourneau wasn't happy with the decision as he wanted to keep his truck. On Dec. 4, he texted his supervisor saying he refused to drive a day cab and if his regular truck wasn't avail- able he wouldn't be driving. The next day, Le- tourneau said to a colleague that he wanted to punch his manager in the head and "knock him out." In the same conversation, Letour- neau said he had hurt his back at a customer's site and he planned to "screw" the company with a workers' compensation claim. The colleague reported Letourneau's threat and comment about workers' com- pensation. Letourneau denied making the comments, but, on Dec. 6, he texted his manager repeating his plan about a workers' compensation claim. He also said he wasn't coming in to work because he didn't have his access card. On Dec. 10, Westcan terminated Letour- neau's employment for threats of violence, insubordination and absenteeism contrary to its policies on misconduct, discipline and workplace violence. The company also indicated it had an obligation under oc- cupational health and safety legislation to maintain a workplace free from violence and threats of violence and harassment. The arbitrator found that both reports from Letourneau's colleagues should be be- lieved, even though Letourneau denied mak- ing them. There was no reason either should be motivated to lie about it, as the evidence indicated one was on friendly terms with him and the other didn't really know him or have a "real interest in the matter." The arbitrator noted that Letourneau "neither threatened nor acted physically aggressive toward the manager" and the two instances where he mentioned punch- ing the manager in the head weren't in the manager's presence and were made without the expectation that the manager would find out about them. In addition, the fact that the manager didn't report the first comment to human resources when he heard about it suggested that he didn't take it seriously, said the arbitrator. However, the arbitrator commented that "no one should have to come to work un- der threat of violence regardless of whether those threats are intended to be acted upon or not" and the manager shouldn't have to potentially wonder whether Letourneau in- tended to follow through on his comments. Insubordination and progressive discipline The arbitrator found that Letourneau's Dec. 4 text about not driving if he didn't get his regular truck indicated he intended to refuse work and it amounted to insubordination. In addition, his absence on Dec. 6 was in- subordinate, as it was likely a refusal to work and not related to his access card — about which he should have contacted Westcan if it was an issue, the arbitrator said. As for Letourneau's attendance issue, Westcan exercised progressive discipline — several verbal warnings followed by a writ- ten warning on Oct. 30, 2018. Termination was a legitimate next step in the process, the arbitrator said. Considering all of these factors and the fact that Letourneau showed no remorse or inclination to accept responsibility for his actions, the arbitrator determined dismissal was an appropriate response to the miscon- duct. The dismissal was upheld. For more information, see: • Letourneau and Westcan Bulk Transport Ltd., Re, 2020 CarswellNat 143 (Can. Arb.). « from ALBERTA WORKER'S on page 1 Truck driver said he wanted to punch his manager CREDIT: SEZERYADIGAR iSTOCK

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