Canadian Employment Law Today

©2020 HAB Press Limited, a subsidiary of Key Media KEY MEDIA and the KEY MEDIA logo are trademarks of Key Media IP Limited, and used under license by HAB Press Limited. CANADIAN EMPLOYMENT LAW TODAY is a trademark of HAB Press Limited. 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, mechanical, photo- copying, 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/HST#: 70318 4911 RT0001 How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE info@keymedia.com www.employmentlawtoday.com 20 Duncan St. 3rd Floor, Toronto, ON M5H 3G8 President: Tim Duce Editor: Jeffrey R. Smith Email: jeffrey.smith@keymedia.com Production Editor: Patricia Cancilla Business Development Manager: Fred Crossley Email: fred.crossley@keymedia.com Phone: (416) 644-8740 x 236 Marketing Co-ordinator: Keith Fulford Email: keith.fulford@keymedia.com Phone: (416) 649-9585 HAB Press Ltd. Worker fired for unpacking too much anger THIS INSTALMENT of You Make the Call fea- tures a worker who was fired for blowing up at a co-worker. The worker was employed as a warehouse sorter for Cardinal Couriers, an interprovin- cial package delivery and supply chain man- agement company. His job involved sorting for overnight delivery equipment to agri- cultural, marine and automotive and repair shops and dealerships. He placed incoming unsorted items into cages marked for delivery to a particular location. Materials for deliv- ery usually had to be loaded onto trucks to leave by 2 a.m. so they would be delivered that morning. On April 26, 2019, a forklift operator in the warehouse tried to remove a cage from the worker's work area, believing it was ready to be taken to the loading area. However, the cage hadn't been sorted and the worker began yelling at his colleague, shouting profanities and insulting him. The warehouse supervisor was some dis- tance away but heard the yelling, so he came over to check out the commotion. He felt the worker was overreacting and it was his opin- ion that, based on its location, the cage looked ready to be moved to the loading area. He told the worker to punch out and go home, but the worker initially refused and took 10 minutes to leave his work area. The worker also talked to other employees before leaving. The worker sent an email to HR accus- ing the supervisor of favouritism toward the forklift operator, who the worker called "the worst and least intelligent person in the ware- house." The worker admitted he had gotten mad and "yelled really really loud" but said the forklift operator "keeps screwing up and he either blames others and others just get blamed." He claimed he didn't know the cage of un- sorted materials was just outside his worksta- tion and appeared to be ready for removal. He only became aware of that fact when the forklift attempted to remove it and was con- cerned he would be blamed for an unsorted cage — which was why he reacted so strongly. The worker also asked HR to make sure the supervisor stayed five metres away from the forklift operator and any decision regarding the latter be made by another supervisor. Cardinal Couriers investigated the mat- ter and decided to terminate the worker's employment. The worker had a previous in- stance of discipline in July 2018 when he had been sent home after refusing to remove three shipments of pipes he had put on the roof of a truck without the driver's knowledge. The worker had been suspended for two days after he claimed he was not at fault because of a mental illness, but his doctor said his conduct had nothing to do with his mental illness and no accommodation was required. The sus- pension letter stated that any future miscon- duct would result in immediate termination. The company informed the worker of his termination over the phone on May 6 and sent him a written notice of termination the same day offering him eight weeks' salary in exchange for him signing a release, notwith- standing that it had just cause for dismissal. The worker refused to sign the release and the company gave him six weeks' pay. Two days later, the worker emailed HR about "political nonsense" and bias against him because of a previous disciplinary inci- dent. He also said "do you really think I care if you give me permission if I'm allowed on Cardinal private property or not. I'll come if I want to." He also claimed he was wrongfully dismissed because of his complaint about his supervisor. YOU MAKE THE CALL Was the worker unjustly dismissed? OR Was there just cause for dismissal? IF YOU SAID there was just cause for dis- missal, you're right. The adjudicator found that the worker never made any acknowl- edgment of wrongdoing, despite the fact he contravened workplace policies against harassment and violence and failed to leave the workplace promptly when ordered to do so. He complained that he was dismissed because of his complaint of favouritism following the incident without taking the incident seriously. However, there was no evidence Cardinal Courier's decision to dismiss him was related to anything except the warehouse incident — which it inves- tigated. In addition, the worker's failure to ac- knowledge the incident was more seri- ous since he had been disciplined several months earlier and warned that additional misconduct would put his job in jeopardy. However, the worker "appeared indifferent to the clear written warning" he was given at the time, the adjudicator said. For more information, see: • Sadat Wasty and Cardinal Couriers Ltd., 2020 CarswellNat 185 (Can. Lab. Code adj.). The worker said he would come to the company's property if he wanted to.

• Cover