Canadian Employment Law Today

March 5, 2014

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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March 5, 2014 12 Published by Canadian HR Reporter, a Thomson Reuters business 2014 Published biweekly 22 times a year Subscription rate: $299 per year Customer Service Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: Carswell.customerrelations@ Website: Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Publisher: John Hobel Managing Editor: Todd Humber Editor: Jeffrey R. Smith E-mail: ©2014 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, mechanical, pho- tocopying, 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 ser- vices 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 govern- mental body. We acknowledge the financial support of the Govern- ment of Canada, through the Publications Assistance Program (PAP), toward our mailing costs. GST #897176350 Did employee throw away his last chance? THIS INSTALMENT of You Make the Call features an employee with a history of workplace disputes getting in trouble while on a last chance agreement. Dan Widsten was a millwright for Howe Sound Pulp and Paper Corpora- tion in British Columbia. His work was considered good, but over his 23 years of employment he had anger manage- ment issues. In 2009 and 2010, Widsten was suspended three times for miscon- duct involving supervisors. By the third suspension, the company felt it was necessary to draw up a "last chance let- ter." The letter stipulated that "further incidents of inappropriate conduct with company management personnel will not occur" and required Widsten to take an anger management program. In December 2010, Widsten was in- volved in another incident with a co- worker and it turned out he hadn't been attending the anger management pro- gram regularly. He was suspended for six weeks and a more formal last chance agreement was drawn up where Wid- sten was required to complete the anger management program and provide proof of its completion. The agreement stated that "any further behavioural issues in the workplace will result in your termi- nation." The company clarifi ed that the behav- ioural issues referred to would have to be "of a like or similar nature" as Wid- sten's previous incidents. Widsten had no further problems for some time and was even commended by management twice for his work and his attitude. However, in the fall of 2012, he had to deal with an outside trainer. The trainer had been rude and condescend- ing to some employees and Widsten had a couple of disagreements with him over his use of millwrights' tools. Widsten had also expressed his frustration with the amount of contracting out. On Oct. 4, 2012, the trainer installed some equipment and dropped by the mill before leaving. One machine was out of service, so he looked for a mill- wright to check on it, but all were busy. The machine superintendent suggested the trainer look at it himself, so he did. The trainer fi xed the machine and on his way out he saw Widsten, so he de- cided to advise him about the repairs. Widsten turned around and, according to the trainer, "erupted" in yelling and verbal insults. The trainer also claimed Widsten said if he caught him "working in his shop or on his machines then he would break my arm," while waving a steel bar in front of him. The trainer reported the incident. The company investigated and other em- ployees said they saw the trainer chas- ing Widsten while screaming and yell- ing. The trainer denied this and said Widsten's behaviour was abusive. Widsten had a different version of the incident, saying he told the trainer he should not be doing millwrights' work, and the trainer was the one who "ex- ploded." Widsten admitted to getting angry, using profanity and saying, "the union is going to f---ing break you," while punching his fi st into his hand. He claimed he was trying to defuse things rather than escalate. Widsten admitted his statements to the trainer were "over the line." The company felt Widsten was downplay- ing his role in the incident and took the threat against the trainer seriously. Since Widsten was on a last chance agree- ment, the company dismissed him. IF YOU SAID the company did not have just cause for dismissal, you're right. The arbitrator noted there were no wit- nesses to the incident, just some em- ployees who saw the trainer chasing af- ter Widsten. There was a problem with accepting the trainer's account, since the trainer had not gotten along with others and was known to cause problems. The arbitrator found it was more likely the trainer lost his temper before Widsten. Widsten acknowledged some responsibility for the incident, but the trainer portrayed himself as a victim and denied getting angry. Though both indicated Widsten may have threatened the trainer, it didn't make sense for the trainer to stick around if he felt in dan- ger, said the arbitrator. Though Widsten played a role in the incident and was guilty of some miscon- duct, the arbitrator found the company shouldn't have accepted the trainer's version of events without an investiga- tion. The trainer was as much a partici- pant, which made Widsten's behaviour "different than when he had challenged management personnel." Since the last chance agreement specifi cally referred to conduct with management, the agree- ment should not have factored into the discipline, said the arbitrator. The arbitrator found dismissal was excessive under the circumstances and the company was ordered to reinstate Widsten with alternative discipline. See Howe Sound Pulp and Paper Corp. and CEP, Local 1119 (Widsten), Re, 2013 Car- swellBC 225 (B.C. Arb.). You Make the Call Did the company have just cause for dismissal? OR Was there no just cause? How would you handle this case? Read the facts and see if the judge agrees

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