Canadian Employment Law Today

CELT Sept 4 2013:celt 467.qxd 13-09-13 10:59 AM Page 5 CANADIAN EMPLOYMENT LAW TODAY CASE IN POINT: WRONGFUL DISMISSAL Comment was 'very nasty' and meant to intimidate ...continued from page 4 The company felt Scott was being "dishonest, evasive and without remorse" about his behaviour and suspended him while it decided what to do. Hood interviewed a few more employees regarding the comments and the altercation following lunch and learned Fox had gone back to Scott's workstation to call him a liar. Scott had not done anything other than to gesture for a supervisor to come over, and Fox was told to go back to his workstation. Fox acknowledged the incident and said he had forgotten to mention it in his initial statement because he was upset. The company called the police and Fox reluctantly gave a statement, as he was on probation. He told the police he didn't think Scott would have carried out his threat and didn't want to press charges. He also said he didn't want to get Scott fired but just wanted an apology from him, though Scott later testified Fox had asked him to apologize. The police didn't file any charges. After considering all the interviews, Hood felt Fox was candid and believable while Scott's account was questionable. Fox admitted to making his threats after lunch but Scott continued to deny making any threats. The company also felt Scott tried to deflect the issue by alleging a marijuana use problem in the plant, of which Fox was part. Fox showed remorse about the situation while Scott seemed not to, which was surprising given the seriousness of the threat he was accused of making. Though he had many years of service and was considered a good worker, Hood felt the threat was serious — particularly considering Ontario's workplace violence laws introduced by Bill 168, Hood's workplace threats and violence policy and Scott's lack of remorse — and it terminated his employment on Feb. 23, 2012. Fox was suspended for one day as his behaviour was provoked and he was sorry for his actions. The union grieved the dismissal, arguing Hood did not have just cause and the dismissal was motivated by the fact Scott was active in the union and was considered by management as "the kind of guy who gets under your skin." This was an opportunity for Hood to get rid of him, the union said. Threat was serious but not enough to dismiss long-term employee The arbitrator found Scott made the threat, as Fox's account was clearer while Scott's was evasive. The specific threat was also believable, since Scott knew Fox had been stabbed in the past. Fox's reactions following the incident were also consistent with the knife comment, and didn't really make sense if Scott's recollection of what he said was true, said the arbitrator. The company felt the employee tried to deflect the issue by alleging a marijuana problem in the plant, of which his co-worker was part. "It was a vicious comment intended to intimidate and worthy of discipline," said the arbitrator. "Furthermore, (Scott) made the comment quietly into Mr. Fox's ear which heightened the intimidation and ensured that he could deny saying it because no one else could hear it." The arbitrator also found that, though it might have been tempting to use a union steward's misconduct to get rid of him, the net benefit wouldn't have been that much because he just would have been replaced by another steward. And since it was determined Scott made the threat, it was irrelevant how involved with the union he was — it was still serious misconduct. The arbitrator looked to the Ontario Occupational Health and Safety Act, which defined violence as "a statement or behaviour" that a worker could interpret as a threat of physical force. Scott's threat fell within this definition, as well as Hood's workplace threats and violence policy — which prohibited "threatening remarks, verbal or written" — said the arbitrator. However, despite the fact the arbitrator found Scott's comment to be "very nasty and clearly intended to intimidate" and out of proportion to the perceived provocation of the sad faces drawn on the white board — the arbitrator also found no one seemed to believe he would carry it out. Fox said he just wanted an apology, and following the yelling they went back to work for the rest of the shift. The arbitrator also noted Scott's many years of service with no previous discipline for harassment or violence, and found this was a "momentary flare-up" that wasn't premeditated. Hood was ordered to reinstate Scott to his position with the company. However, as an acknowledgment of the seriousness of the threat, the company was not required to pay any back pay to him, with the 16 months since his termination serving as an unpaid suspension. "(Scott's) service or 'trust equity' must be weighed against the seriousness of the comment and the lack of remorse. If (Scott) has only done this once in his 24 years of employment with the company it is unlikely he will do it again. It is particularly unlikely when he has lost 16 months' pay and will have that suspension permanently on his record," said the arbitrator. CELT For more information see: ■Hood Packaging Corp. and CEP, Local 1178 (Scott), Re, 2013 CarswellOnt 9490 (Ont. Arb. Bd.). MORE CASES To view more cases from Canadian Employment Law Today's archives, go to www.employmentlawtoday.com and click on "Advanced Search," where you can search for articles by keywords or department. Published by Canadian HR Reporter, a Thomson Reuters business 2013 5

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