Canadian Employment Law Today

Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2018 icy and code of conduct set out a reporting procedure where employees could report an incident to their supervisor, the human resources department, or the office of the ombudsman. Company records indicated Massissou completed the training module on Oct. 15, 2016, about one month after he started with Amex. e policy, values, and code of conduct were also posted on the home page of company computers. Altercations with colleagues started early During the 12-week training period, Mas- sissou claimed a co-worker referred to him as a"cave-man" and called him a drunk in front of the team leader. He told the team leader, but the co-worker denied saying "cave-man" and said he frequently used the term "my man," which Massissou likely mis- heard. Massissou responded that he wasn't a homosexual and didn't like being called "my man," which led to a heated argument. e team leader reported the incident to Amex's employee relations specialist and told both of them to remain professional in the workplace and to let him know if they had any issues. About one month later on Dec. 21, anoth- er team leader emailed her supervisor about another incident between Massissou and the same co-worker. Massissou had told the team leader his co-worker was talking about him behind his back and telling other CCPs that he was drunk at work. Massissou said he would confront the co-worker if he heard anything else. e team leader told Massis- sou that he should avoid a confrontation and inform her if it happened again. e supervisor felt these situations were "workplace incidents" and the team leaders had dealt with them sufficiently. On April 5, 2017, another Amex employee called security and a supervisor, accusing Massissou of "aggressively" bumping her in a hallway. e supervisor began an investi- gation with the assistance of the manager of Amex's security services. e supervisor interviewed the accuser, who mentioned another incident where Massissou had accused her of purposely lis- tening in on a phone call that she had trans- ferred to him but forgot to release. She had apologized at the time. She also discussed another occasion when she had mistak- enly said "amigas" instead of the masculine "amigo" when saying goodbye to Massis- sou. Massissou had responded by saying he wasn't gay, accused her of talking behind his back, and said "if she was not a girl" he would have gone "fist to fist" with her. Massissou denied bumping into the ac- cuser, though he admitted to being angry about the phone call and "amiga" comment. Massissou felt he had been unprepared for the investigative interview, so afterwards he sent an email to the team leaders saying his accuser "plays the victim card but she is not as innocent as she have you think." He said the co-worker had provoked him often both "verbally and physically" and listed sev- eral incidents. He denied saying he would go "fist to fist" with the accuser, calling her "de- lusional" and saying all his co-workers were "desperately trying to paint a negative image of me so HR can terminate my job at Amex." Massissou followed up with an email to the investigating team leader about the "cave- man" comments of his co-worker, insisting they were grounds for termination and "I trust that you will take action immediately and I want an update afterwards." e investigators found the bumping al- legation couldn't be substantiated but they were concerned about Massisou's response, his unprofessional conduct, and his lack of any responsibility for the problems with his colleagues. ey gave Massissou a warning letter that outlined the expectations for re- spectful conduct in accordance with com- pany policies. e letter was labelled a "first and final warning" and future violations of the policies would "result in your immediate termination of employment." After the warning letter was delivered to Massissou, he continued to deny responsi- bility for his interactions with his colleagues and was mostly worried about the impact of the warning letter on his career. e supervi- sor reiterated that he must be courteous and professional at work and if he had an issue with anyone to contact a team leader or HR. Worker's conspiracy theory On May 23, 2017 — a little more than three weeks after the warning letter — Massissou sent an email to the supervisor, his own team leader and several other Amex employees. e email stated that there were defamatory comments about him circulating and he "will denounce and simultaneously eradicate all of the various false rumours about me." He went on to discuss at length a false rumour his team leader allegedly had spread about him, then said he "will not tolerate being labelled as a homosexual." He also accused his team lead- er of trying to get him to quit "at least three times" and making "indirect insults" towards him. e letter concluded with the statement: "I am not afraid of the light, I am constantly defending my character and while you hide and gossip about me, I expose the truth to your face to face and I always prevail." e supervisor called Massisou to tell him the open email was aggressive and against the harassment policy, code of conduct, and company values. However, Massissou angri- ly and repeatedly interrupted her, maintain- ing he had the right to defend his reputation. Following the call, the supervisor met with other management and they determined Massisou had violated Amex's policies of respectful communication and damaged the employment relationship beyond repair. Amex terminated Massissou's employment and offered a severance package. Massissou filed a complaint saying Amex had unlawfully terminated him in reprisal for complaining about his treatment by col- leagues, contrary to the Ontario Occupa- tional Health and Safety Act (OHSA). e board found that after Massissou's altercation with his co-worker over the com- ments about being drunk and "cave-man," Amex took action when the team leaders reported it and advised Massissou to come to them if there were any issues. Amex de- termined the comments weren't harassment and considered the matter resolved. e board also found that Massissou's emails prompting and following the warning letter were not attempts to invoke his OHSA rights and complain about harassment. e email following the interview was "an accusa- tory and critical response" to the bumping ac- cusation and implied a malicious conspiracy to get him fired. ere was no implication that he was complaining of harassment and Massissou made it clear he could deal with his colleague on his own terms, said the board. e board also found that the warning letter was solely for Massissou's unprofes- sional conduct in the workplace. Massis- sou showed no concern that he was being harassed and was only concerned about the effect the letter would have on his career. He also indicated he didn't accept the directions in the letter, said the board. e second widely-distributed and defi- ant email came after the written warning and demonstrated a continued failure to meet Amex's standards of conduct. By ignoring the warning, Massissou provided just cause to terminate his employment, said the board. "e fact that Mr. Massissou would send the email after the employer warned him of professional communication in the work- place, demonstrates that he was willing to hear only that which he wished to hear and had a propensity to disregard any informa- tion or directive that did not support his po- sition or failed to endorse his approach to the analysis of the situation," the board said. e board determined that Amex dis- missed Massissou for reasons other than an exercise of OHSA rights. In fact, there was no evidence Massissou made any actual harass- ment complaint that could be considered an exercise of such rights, said the board. For more information see: •Massissou v. Amex Canada Inc., 2018 Car- swellOnt 8560 (Ont. Lab. Rel. Bd.). Emails showed continued antagonism and ignored warning « from ANTAGONISTIC on page 1 More Cases

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