Canadian Employment Law Today

Canadian Employment Law Today Canadian Employment Law Today | | 3 Canadian HR Reporter, a Thomson Reuters business 2014 Cases and Trends Cases and Trends Hydro One worker fi red for profane tirade reinstated Worker acted insubordinately but was under stress and not at work BY JEFFREY R. SMITH AN ONTARIO employee's profanity-laced tirade against a manager on the phone was cause for discipline but not dismissal, the Ontario Labour Relations Board has ruled. Tyler Leudke was an electrician for Hydro One Networks, an electricity provider in Ontario. Hired in 2002, Leudke was laid off and rehired twice before voluntarily terminating his employment in 2006. He returned to employment with Hydro One again in 2007. In April 2008, Leudke received a ver- bal warning from a senior manager, Greg Chaff ey, for being argumentative with su- pervisors, failing to remain at work during regular hours, being late for work, and leav- ing without authorization. In November 2010, Chaff ey demoted Leudke with a writ- ten warning for failing to report an acciden- tal electrical contact incident. Chaff ey fur- ther had to discipline Leudke with a 1.5-day suspension in March 2011 for using a per- sonal cellphone during a training session, which was against company procedure. In 2011, Leudke was granted a six-month parental leave after the birth of his second child. Leudke requested an extension to 12 months, which was also granted. His ex- pected return date was June 26, 2012. Additional leave requested A week before Leudke was to come back to work, he contacted his foreman to ask if he could tack on his three weeks of vacation to the end of his leave. After receiving no re- sponse, Leudke contacted the next person up the ladder, a superintendent. e su- perintendent felt he needed to speak to the area construction manager — which was Chaff ey — for such a long vacation request. Leudke's request was granted and his new return date was July 17, 2012. Since Leudke had been away from the workplace for so long and would be working for a new fore- man, it was decided he should have to attend a few days of training to ensure he was up to date. is training had to be rescheduled after his additional time off was granted. July 17 came and went, and Leudke didn't return to work at Hydro One. Leudke con- tacted the superintendent and told him his wife was having medical issues and he needed to stay home to look after the chil- dren. Leudke indicated it was serious and he needed to take a medical leave. He also said he would quit his employment if neces- sary, but he needed to stay home. e su- perintendent told Leudke he should speak directly to Chaff ey about the medical leave request. However, Leudke claimed the su- perintendent told him they would fi gure it out and get back to him and denied being told to get in touch with Chaff ey. One week later, Chaff ey called Leudke to get some information for the medical leave request. Leudke said his phone was dying, so Chaff ey asked Leudke to call him back. However, the call didn't come. Heated telephone conversation On July 27, Chaff ey called Leudke again. Chaff ey once again explained he wanted to discuss the medical leave request, but Leud- ke cut him off and said "you know I have a sick wife" and "this is a nothing job." Accord- ing to Chaff ey, Leudke followed up with a profane insult and said, "you've been out to get me." Chaff ey retorted that anything that happened in the past was his own fault, to which Luedke said, "you can stick your job up your ass." Before hanging up, Leudke made another vulgar insult and said, "I'm going to come and get you." Leudke had a diff erent version of the conversation. He testifi ed that Chaff ey said "only women take parental leave" and called Leudke a homophobic slur. Hydro One terminated Leudke's employ- ment for swearing and threatening Chaff ey, as well as a "lack of respect to your fellow workers who have followed the vacation protocol." Leudke was also banned from any property owned or operated by Hydro One. e union grieved the dismissal, supporting Leudke's contention that he didn't threaten Chaff ey and only swore at him in response to a homophobic slur. e arbitrator found the stage was set for both Chaff ey to be angry and Leudke to be irritated before the phone call. Once Leudke called to request the medical leave, the follow-up calls from Chaff ey were un- expected and unwelcome since Leudke was under the impression the leave had been granted after his initial call. However, the arbitrator found it unlikely Chaff ey made the homophobic slur and acted condescending, without any evidence of similar conduct in the past. As a result, it was likely Leudke became angry during the call and used coarse language and threats. e arbitrator found the request for three weeks vacation at the end of his leave did not provide just cause and was within Leud- ke's right. is left only his conduct during the phone call. ough Leudke said he was "going to come and get" Chaff ey, this comment was made in anger and on the spur of the mo- ment after receiving an unexpected and unwelcome phone call. Adding in the stress of his wife's illness, Leudke's comments should not reasonably be perceived as a threat, said the arbitrator, pointing out that Chaff ey didn't call the police and therefore didn't perceive it thus. e arbitrator found Leudke acted insub- ordinately and with "repeated, unjustifi ed, profane verbal abuse," though without a real threat and while under stress. is war- ranted discipline but not dismissal, said the arbitrator. Hydro One was ordered to reinstate Leudke with a two-week unpaid suspen- sion, but with no back pay from his date of termination. See Hydro One Inc. v. CUSW, 2014 CarswellOnt 4234 (Ont. Lab. Rel. Bd.). 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 family status accommodation, young workers and the law, gender expression and identity in the workplace, best hiring practices, social media in the workplace, and accommodating people with disabilities. To view the webinar catalogue, visit cpdcentre.ca/hrreporter

• Cover