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 Thomson Reuters Canada Ltd. 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 Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) E-mail: customersupport.legaltaxcanada@tr.com www.employmentlawtoday.com Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Media Solutions, Canada: Karen Lorimer Publisher/Editor in Chief: Todd Humber Editor: Jeffrey R. Smith E-mail: Jeffrey.R.Smith@tr.com Sales Manager: Paul Burton Email: paul.burton@tr.com Phone: (416) 649-9928 Marketing Co-ordinator: Keith Fulford Email: keith.fulford@tr.com Phone: (416) 649-9585 ©2019 Thomson Reuters Canada Ltd. 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 Canad ad ad ad ad ad a ian an an www.employmentlawtoday.com Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) E-mail: customersupport.legaltaxcanada@tr.com www.employmentlawtoday.com Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Media Solutions, Canada: Karen Lorimer Publisher/Editor in Chief: Todd Humber Editor: Jeffrey R. Smith E-mail: Jeffrey.R.Smith@tr.com Sales Manager: Paul Burton Email: paul.burton@tr.com Phone: (416) 649-9928 Marketing Co-ordinator: Keith Fulford Email: keith.fulford@tr.com Phone: (416) 649-9585 YOU MAKE THE CALL Was termination an excessive amount of discipline? OR Was the altercation a serious enough breach of the workplace violence policy to warrant termination? IF YOU SAID termination was excessive, you're right. e arbitrator found Loomis' workplace violence policy and the way the company disseminated and enforced it was admirable, but there were mitigating cir- cumstances to consider that were in Araia's favour. e arbitrator found that the warehouse employee clearly provoked the altercation by insulting and mocking Araia and then placing his freight on the ground to impede his loading. e insults along with butting his cap brim against Araia's forehead was "provocative workplace violence and could serve no other purpose than an attempt to provoke (Araia)," the arbitrator said. However, though Araia initially walked away from the taunts, he changed his mind and went face-to-face with his tormenter, which then led to the physical altercation — despite the fact he was aware of the work- place violence policy and was not in any dan- ger that could support an argument of self- defence. e fact that he was provoked did not completely excuse his behaviour, said the arbitrator. e arbitrator noted that Araia had 10 years of discipline-free service and the alter- cation was an isolated incident. Given these factors, along with the fact he was provoked and he reported the incident immediately, the arbitrator determined that a lesser pen- alty than dismissal was warranted. Loomis was ordered to reinstate Araia to his employment with a 30-day suspension on his record and compensation for any lost pay since the end of the suspension period. For more information see: • Loomis Express and Unifor, Local 4050 (Araia), Re, 2018 CarswellAlta 2665 (Alta. Arb.). Shipping company workers unload on each other THIS INSTALMENT of You Make the Call features a truck driver who was fi red after a physical altercation with a co-worker. Loomis Express, a shipping company, em- ployed Daniel Araia as an "owner operator" in its Southern Alberta region since 2007. As an owner operator, Araia drove a truck car- rying freight for Loomis but owned his own truck. He had no discipline on his record. On Aug. 25, 2017, Araia was loading his truck with freight to deliver at a Loomis warehouse. A warehouse employee was bringing the freight to the truck so Araia could load it onboard. However, at one point the warehouse employee placed Araia's freight directly on the fl oor, contrary to reg- ular practice — the freight was supposed to be delivered to the truck on skids, which are removed after the freight is loaded to make room for more loading. Araia asked the warehouse employee to place his freight on a skid and ensure the path to the truck remained clear, to which the warehouse employee — according to a nearby witness — replied, "I could put it in a certain way but you wouldn't f---ing like it." Another employee reported that the ware- house employee "lost his cool," started ges- ticulating and making comments about Ara- ia's language skills and race. Araia walked away, but the warehouse employee contin- ued to mock him. Araia moved closer to the warehouse employee and asked him what he said. e warehouse employee responded by moving closer until the two men were face-to-face. ey began speaking in loud voices and the brim of the baseball cap that the warehouse employee was wearing kept butting Araia in his forehead. e warehouse employee pushed or hit Araia's shoulder, and this set off an exchange of blows between them. Af- ter they struck each other a few times, an- other employee broke up the fi ght. Immediately after the incident, Araia re- ported it to the operations supervisor, who saw that his face was bruised and he was angry. Araia said the warehouse employee had fought with him and had threatened to "break his face." e supervisor then spoke with the warehouse employee, who to him seemed calm and told him the altercation was a "mutual thing." Both employees were held out of service while Loomis investigated. e company in- terviewed several employees and Araia said the warehouse employee was "punking" him and talking down to him, making fun of his English. e warehouse employee admitted he was stacking the skids and putting Araia's freight on the ground, but Araia and other owner operators were talking down to him. Another employee who witnessed the al- tercation said he didn't report it at the time because it was something that was dealt with in the day-to-day operations. Loomis completed the investigation and decided to terminate both employees for breaching the company's workplace vio- lence policy. Araia's letter of termination stated that he had committed an act of work- place violence as defi ned by the company's policy. e policy, on which all employees were trained, stated that physical attacks and verbal abuse constituted workplace violence and would not be tolerated. e union grieved the termination as ex- cessive.

• Cover