Canadian Employment Law Today

CANADIAN EMPLOYMENT LAW TODAY Published by Canadian HR Reporter, a Thomson Reuters business 2014 5 getting an opportunity to do so. Employer used wife's account of events as grounds for dismissal The investigator completed the report without Toner's participation. Though he was aware Toner had a clean disci- plinary record, it was recommended to the executive director that Toner be ter- minated for a criminal assault outside of work, which violated the code of profes- sional conduct and "refl ects negatively upon the department." It was particularly sensitive since the correctional facility where Toner worked housed several inmates who had been convicted of spousal abuse and the Nova Scotia government had recognized spousal abuse as a serious social prob- lem, adopting a "pro-arrest, pro-charge, pro-prosecution policy." The department also noted Toner was provided with an opportunity to respond but chose not to. It did not wait for the sentencing because its investigation was a separate process from the court pro- ceedings. Toner was dismissed on June 10, 2010. The court granted Toner a condition- al discharge, meaning no conviction was entered for the assault. The union grieved the dismissal, arguing the incon- sistency of the reports — and shallow- ness of the employer's investigation— didn't warrant dismissal. The union called a clinical psycholo- gist who was treating Toner, who ex- plained Toner was "very remorseful and upset that he had scared" his wife. The psychologist testifi ed Toner "had insight into his behaviour" and worked hard to obey the no contact order issued by the court. There was also no history of sub- stance abuse and his anxiety had con- tributed to the incident. He also didn't fi t the profi le of a spouse abuser and was a low risk to repeat his behaviour, said the psychologist. Toner testifi ed that when he got home that night, his wife told him "I know how to get rid of you" and went to the phone. He asked her not to, because there would be charges that would like- ly end his employment. He said when 911 called back, he took his knife and attempted suicide by stabbing himself as he was stressed from his relationship crisis and his suspicion that she was seeing somebody else. He also acknowl- edged had he not consumed alcohol the incident would not have happened. Toner also said he told the investiga- tor he had to be cleared by his doctor before speaking to him, and he took the comment that he was not going to or- der him to be interviewed as a form of intimidation. Toner stressed that he had taken steps to get help, such has getting medication and seeing the psychologist. The arbitrator noted that although one of the charges against Toner was withdrawn and the assault with a weap- on charged was reduced, this didn't necessarily reduce the seriousness of his actions. There were several factors that could contribute to such a decision, but the standard of proof for court cases was different than for an employer investiga- tion, said the arbitrator. The arbitrator found there were incon- sistencies between the reports Toner's wife gave to the police, the court and the department of justice's investigator. In the latter, she said Toner had held the knife to her throat before she called 911, while in the arbitration hearing she testifi ed she woke up with the knife at her throat. In her police report, she only said Toner had a knife in his hand when he pinned her down. However, it was clear in any event that Toner had a knife, which was witnessed by police when he returned to the house. It was consistent in all the reports that Toner had said, "if I can't have you no one can," which were "ominous" words, said the arbitrator. However, the fact the wife wasn't injured and Toner only injured himself was taken into con- sideration. The arbitrator found that using the wife's interview with the investigator as the grounds for termination couldn't be fully supported due to the differences with the police report, but the employer could not be faulted for relying on that interview since it didn't have all the court evidence or Toner's version. Regardless of the most accurate ver- sion of events, the arbitrator found it was a serious case of off-duty conduct. However, there was no evidence the in- cident was ever made public and thus it didn't harm the department of justice's reputation or become known to Toner's co-workers or the inmates. Also, there was no evidence his co-workers would be reluctant to work with him again, said the arbitrator. The arbitrator found the incident was "a one-off event, an aberration" that was out-of-character for Toner as there was no history of violence or threats be- tween the couple. It wasn't pre-meditat- ed and was caused by his intoxication that night along with his frustration and stress over his marriage woes. He also accepted responsibility for his actions and felt remorse. The Nova Scotia Department of Jus- tice was ordered to reinstate Toner to his position as a corrections offi cer, with a one-month unpaid suspension substi- tuted as discipline for his misconduct. For more information see: • Nova Scotia (Department of Justice — Corrections) and NSGEU (Toner), Re, 2012 CarswellNS 1056 (N.S. Arb.). CASE IN POINT: WRONGFUL DISMISSAL Continued from page 4 Employee blamed incident on stress, alcohol Using only the wife's interview as grounds for termination wasn't a good idea, but the employer could not be faulted for relying on it since it didn't have the employee's version of events or court evidence. WEBINARS WEBINARS Interested in learning more about employment law issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as attendance management, changes to the foreign worker program, accommodating persons with disabilities, and social media in the workplace. To view the webinar catalogue, visit cpdcentre.ca/hrreporter.

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