Canadian Employment Law Today

March 19, 2014 4 Published by Canadian HR Reporter, a Thomson Reuters business 2014 Knife-wielding corrections offi cer fi red – but not for long Offi cer was stressed, drunk when he had domestic dispute | BY JEFFREY R. SMITH | A NOVA SCOTIA corrections offi cer who was fi red after he was involved in a do- mestic dispute — featuring a knife that led to criminal charges — has been rein- stated by an arbitrator. Darell Toner was a corrections offi cer for the Nova Scotia Department of Jus- tice. He had 12 years' service with no discipline until March 2010, when he faced repercussions for a domestic inci- dent at his estranged wife's home. Over a fi ve-year marriage, Toner and his wife had experienced some prob- lems. They had separated once before, but later reconciled. However, in early 2010, Toner's wife discussed the possi- bility of separating again. On March 14, 2010, Toner went to a hockey game after work. Normally, on days he worked, he stayed at his par- ents' house because it was more con- venient, so his wife wasn't expecting him home that night. However, around 2 a.m. the next morning, Toner called his wife to say he had gone out drinking after the game and was coming home. Corrections offi cer involved in domestic altercation Toner arrived around 6 a.m. on March 15 and his wife awoke to fi nd him on top of her. They began arguing and the wife claimed Toner said to her, "if I can't have you no one can." She was upset and scared, especially since her 14-year-old daughter from an- other relationship was asleep in another room. The wife called 911 but was dis- connected, and Toner got off of her. He cut himself with the knife and the left the house. A 911 operator called back and the wife explained what was happening and that her husband was "drunk and suicidal," having stabbed himself. Two police offi cers were dispatched to the Toner house. When police arrived, the wife talked to a female offi cer and reported Toner had grabbed the knife after he moved off of her and stabbed himself after 911 called back. She went to the station and gave a sworn statement that Toner had kept saying he didn't want to separate and asked her for sex, while pinning her with his hands, one of which held the knife. Toner eventually returned to the house and was arrested. Toner was charged with assault with a weapon and uttering threats, but he reached a plea agreement in which he pleaded guilty to a reduced charge of common assault and the uttering charge was withdrawn. Toner informed his employer, the justice department — as required under the department's code of professional conduct for corrections workers — and went on sick leave. The department began an investiga- tion into the incident in May and asked Toner for an interview. Toner refused be- cause he was to appear in court shortly. The investigator then interviewed Ton- er's estranged wife, who described the incident as before but added that Toner had held the knife to her throat. The in- vestigator contacted Toner again for an interview on June 1 but he was agitated, accusing his employer of harassing and intimidating him while he was on sick leave. Toner was told he wasn't required to submit to an interview, but he was CASE IN POINT: WRONGFUL DISMISSAL Continued on page 5 BACKGROUND BACKGROUND OFTEN EMPLOYERS take a "don't ask, don't tell" approach to employees' actions when they're away from work. And why not? But when an employee's actions while off-duty are serious enough to get him in legal trouble, sometimes the employer has to take notice. This is especially true if the misconduct could potentially affect the employee's job and the employer's ability to operate. The occupation of corrections offi cer is one that has a higher standard of conduct both in and outside of the work- place, as serious misconduct can call into question an offi cer's ability to do his job and put the corrections authority under fi re publicly. But not always. Let's take a look at an arbitrator's decision from a couple of years ago where a Nova Scotia corrections offi cer faced assault charges stemming from a domestic dispute. The employer's solution to the prob- lem isn't really surprising, but the arbitrator's fi nal decision may be. EMPLOYMENT LAW BLOG EMPLOYMENT LAW BLOG Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog includes a tool for readers to offer their comments, so discussion is welcome and encouraged. The blog features discussion of topics such as employee surveillance, accommodating short-term illnesses, co- operation of employees in accommodation, and temporary layoffs. You can view the blog at www.employmentlawtoday.com.

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