Canadian Employment Law Today

CELT August 21 2013:celt 467.qxd 13-09-16 9:50 AM Page 7 CANADIAN EMPLOYMENT LAW TODAY MORE CASES COMPILED BY JEFFREY R. SMITH ...continued from page 1 an agreement to allow for his reinstatement for one last chance. The agreement stipulated the worker had to complete an anger management program and comply with all the company's regulations and policies. He also agreed to "fully perform all duties and responsibilities of his position as directed by members of management" and to maintain an absenteeism level no more than the employee average. The agreement went on to state it would be applied "in the strictest manner" and failure to comply would result in "the immediate termination" of the worker's employment. After returning to work, the worker called in sick five times without explanation over the next five months. One day, he didn't show up and didn't call in and another day he was caught not wearing proper safety equipment. Then, on Nov. 21, 2012, the worker was heard speaking negatively about other employees and using inappropriate language. The worker was told GE considered his behaviour in violation of the last ASK AN EXPERT ...continued from page 2 approachable. This put the employee's credibility at issue. In a 2009 decision from the Ontario Human Rights Tribunal — Harry Dyal v. Toronto Transit Commission — the tribunal found an employee who also did not report alleged harassment to his employer, also had credibility issues. At the same time, the Tribunal stated that failing to report harassment to an employer does not automatically raise issues of fabrication or credibility. "I also note that not raising concerns about harassment or discrimination during his employment or while contesting his termination is not necessarily suggestive of fabrication. While I appreciate the respondents' argument that the chance agreement and had sufficient grounds to fire him. However, the company recognized the worker was having personal problems and frustration with his job, so he was referred to the employee assistance program and told any more violations of the last chance agreement would result in immediate termination. However, the worker was absent for seven days in the first two months of 2013, with an explanation for only one of the days. There were also more incidents of insubordination and a breach of safety, so GE terminated the worker's employment on March 21, 2012. The union grieved the dismissal, arguing the worker wasn't disciplined for any of the misconduct that followed the June 2012 last chance agreement. In addition, it said the personal stress he was under, which GE knew about, was a factor and the company should have given him more time to improve. A sixmonth period was too short of a time to show he could abide by the terms of the last chance agreement, said the union. The arbitrator acknowledged the worker's personal problems may have had a negative impact on his ability to attend work, but found he had been given plenty of opportunity to improve. He was on his second last chance agreement, after already being terminated and then reinstated, so he was well aware of the precarious position he was in. Also, his absenteeism rate significantly over the average rate — 9.17 per cent in the six months since his last chance agreement, with the average at 5.66 per cent (2.63 per cent when removing disability and workers' compensation leaves). The arbitrator found GE did take the worker's personal circumstances into consideration as the worker was warned before he was terminated. Six months was ample time for him to improve, particularly considering he was on his second "last chance" agreement, said the arbitrator. Even though the worker was told the agreement would be applied strictly, he was still given a warning in November 2012 instead of dismissed at that point. By the time he was terminated, the worker had demonstrated a pattern of misconduct that wasn't improving. Without a reasonable prospect of improvement, GE had just cause to dismiss the worker, said the arbitrator. See GE Hitachi Nuclear Energy Canada and CAW, Local 252 (S. (K.)), Re, 2013 CarswellNat 2087 (Can. Arb.). applicant had frequently raised workplace concerns, there may be particular sensitivities and challenges around allegations of discrimination or harassment that distinguish these from other workplace issues," said the tribunal. The case law is clear that an employee's failure to report harassment to her employer does not absolve an employer of liability. These two decisions also support that an employee who does not report harassment to the employer will not automatically be assumed to be fabricating the allegation. However, these cases support that an employee who fails to report may be required to raise evidence of intimidation or other factors that prevented reporting the harassment. This issue provides a reminder to employers to review their workplace harassment policies. Most policies include alternative complaint procedures for employees who feel that they cannot raise an issue directly with a supervisor. CELT CELT For more information see: ■Brown Bear Day Care v. Hollander, 2010 CarswellOnt 11089 (Ont. Lab. Rel. Bd.). ■Mossman v. Romney & Romney (Aug. 2, 1989), Decision #685 (N.S. Labour Standards Trib.). ■Chaudhary v. Smoother Movers, 2013 CarswellNat 1897 (Can. Human Rights Trib.). ■Harry Dyal v. Toronto Transit Commission, 2009 HRTO 828 (Ont. Human Rights Trib.). Brian Johnston is a partner with Stewart McKelvey in Halifax. He can be reached at (902) 420-3374 or bjohnston@smss.com. Published by Canadian HR Reporter, a Thomson Reuters business 2013 7

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