Canadian Employment Law Today

September 4, 2013

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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CELT Sept 4 2013:celt 467.qxd 13-09-13 10:59 AM Page 1 CURRENT NEWS AND PRACTICAL ADVICE FOR EMPLOYERS SEPTEMBER 4, 2013 Termination for threats, unsafe driving upheld Antisocial worker claimed his actions were misconstrued but city's concern for safety were real | BY JEFFREY R. SMITH | A WINDSOR, ONT., city employee's comments involving guns and his co-workers were sufficient to warrant his dismissal, an arbitrator has ruled. Terry L'Esperence worked for the City of Windsor for 10 years, most recently in the traffic operations department repairing and replacing road signs. Before joining traffic operations, he was a carpenter for the city and was moved to traffic operations after some downsizing. From the beginning, he didn't like his new posiJUST tion and considered it a drop in status. L'Esperence's discontent showed through in his attitude towards his coworkers in the traffic department, often referring to them as "flunkies." This attitude did not go over well with other employees or his superiors, and in August 2010 he received a four-week suspension for "displaying unprofessional and inappropriate behaviour toward fellow employees by swearing at them, calling them inappropriate names and making demeaning comments." An agreement between the city and the union reduced the suspension to three days. Upon his return following the suspension, L'Esperence was involved in a confrontation with a member of the public on a road. He received a verbal warning. In February 2011, another three-day suspension — reduced from an initial length of five days — for skipping a mandatory training course. In each instance of discipline, L'Esperence submitted lengthy rebuttals, alleging he was "harassed, intimidated and bullied by management and my fellow co-workers." He said he felt they were trying to get him to quit so they could be rid of him. Comments about gun only the beginning In T h is I s s u e ASK AN EXPERT: Employee refuses to take vacation • What constitutes overtime? CASES AND TRENDS: Don't fear administrative leave CASE IN POINT: Years of service outweigh employee's serious threat OPINION: $160,000 discrimination award overturned YOU MAKE THE CALL: New policy rubs safety co-chair the wrong way 2 3 4 7 12 On April 11, 2011, L'Esperence was partnered with a co-worker to drive around repairing signs. The co-worker, trying to make conversation, asked L'Esperence if he had done anything over the weekend. L'Esperence CAUSE replied that he had spent the weekend cleaning a gun. The co-worker asked him if he was a hunter, to which L'Esperence reportedly replied that he "likes to keep his gun very clean." The coworker then heard L'Esperence mumble under his breath and say "there are a couple of flunkies in the lunch room that I'd like to take hunting." The co-worker later said these comments raised a "red flag" with him, but he decided at the time to let it drop. However, he began to change his mind when, the next day, they drove by a group of women protesting abortion. He claimed L'Esperence rolled down the window of the city truck they were riding in and yelled at the women to "get a (expletive deleted) job." The coworker said some of the women heard L'Esperence and stood there with their mouths open. AN ALBERTA company must pay more than $100,000 in fines after a worker fell through an unprotected opening at an industrial salvage site and was seriously injured. Clearway Recycling was an Edmonton-based scrap metal salvage company. In August 2008, the company was salvaging materials from a derelict former industrial plant in Edmonton. Clearway used several contract workers on the site to salvage metal. One worker at the site was employed by Clearway on a temporary basis through a contract with a staffing service. He started work at the site without safety training on Aug. 13, 2008. He was given basic work gear and told to "keep his eyes open, keep away from the torches, Continued on page 8 Continued on page 11 Alberta company fined $100,000 after non-fatal accident

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