Canadian Employment Law Today

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GST #897176350 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 @thomsonreuters.com Website: www.employmentlawtoday.com Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Carswell Media: Karen Lorimer Publisher: John Hobel Managing Editor: Todd Humber Editor: Jeffrey R. Smith E-mail: Jeffrey.R.Smith@thomsonreuters.com ©2014 Thomson Reuters Canada Ltd. All rights reserved. Emplo y ment Law Today anad a ian www.employmentlawtoday.com How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 Sensitive employee raises stink over workplace scents THIS INSTALMENT of You Make the Call features an employee with sensitivity to scents who walked off the job after smelling perfume in the workplace. Greg Brownlie was a machine operator for Federal-Mogul Windsor, an auto parts manufacturer in Windsor, Ont. Brownlie was hired in 1999 and in early 2010 he in- formed Federal-Mogul he had asthma that was aggravated by scents in the workplace. It was thought perfumes worn by female employees made Brownlie's asthmas worse, so the company adopted a policy banning perfume and cologne in the plant. In February 2011, an employee fi led a ha- rassment complaint against Brownlie, com- plaining he had directed fans at her and said she was wearing perfume. e employee said she was only chewing bubble gum and a company investigation confi rmed there was no perfume. Soon after, Brownlie provided a doctor's note that confi rmed it was necessary for him to work in a scent-free environment. Fol- lowing this note, Federal-Mogul changed its policy to prohibit any scented products and posted it at the front entrance, as well as elsewhere in the plant. Special scent-free products were also purchased for a wash- room Brownlie used. In October 2012, Brownlie became dis- ruptive when he felt a representative for a company that supplies the fi rst aid kits and eye wash stations was wearing perfume and violated the scent free policy. Federal- Mogul couldn't fi nd any evidence of em- ployees breaching the scent policy and it felt Brownlie was making false accusations. He was told to stop and Brownlie responded by saying his human rights were being violated. A protocol was developed where Brown- lie would notify the production manager if he detected a scent that bothered him. e company would investigate and Brownlie would remain at his workstation and use fans that were in the area. is was particu- larly important because there were some scents in the plant from things such as pro- pane, coolant and cleaning supplies and it wasn't certain what scents could trigger Brownlie's asthma. On Nov. 21, 2012, Brownlie told the pro- duction manager the same representative was wearing perfume. He was upset and said the HR manager "didn't do her job." e production manager talked to the representative and she denied she was wear- ing perfume. She said the HR manager had spoken to her about hand cream she was wearing — though no scent was detected — and she wouldn't wear it next time. e production manager didn't smell anything. Brownlie became angry and said the com- pany didn't care about him or his health. e production manager was surprised Brown- lie was so angry, but Brownlie got his coat, said he was calling the union, and stormed off . e manager noted the fans in Brown- lie's area were off . After Brownlie left, the manager reported 90 minutes of production time was lost from the end of Brownlie's shift and the beginning of the next one. A meeting was held the next day and Brownlie didn't off er any explanation for not following the protocol and instead said it was everyone's fault. e HR manager testifi ed Brownlie appeared "cocky and ar- rogant." ree employees reported they had smelled a scent coming from the medical supply representative, while four others and the managers couldn't detect anything. Management determined this was an example of a false accusation by Brownlie. Since he showed no remorse and his attitude wasn't good, Federal-Mogul decided to dis- miss Brownlie for making false accusations, insubordination, not following protocol and leaving his workstation. IF YOU SAID dismissal was inappropri- ate, you're right. e arbitrator noted that it was "diffi cult, if not impossible" to ensure the workplace was completely scent-free in "a scented world," though Federal-Mogul at- tempted to accommodate Brownlie by ban- ning scents as much as it could. Noting that some people can smell things others can't, the arbitrator found the fact that three employees in addition to Brown- lie claimed to have smelled something was enough to conclude Brownlie did not make a false accusation. However, the arbitrator also found Brownlie's conduct when he became angry at management was "excessive and inappro- priate." It was also clear he didn't follow the estab- lished protocol and didn't try to remedy the situation by turning on a fan. e concern an asthmatic might have over the potential of having an attack once a scent is detected could explain why Brownlie was agitated, but was not an excuse to act the way he did. As for the production loss, it only amounted to 20 minutes at the end of Brownlie's shift, and there was no explana- tion as to why it aff ected the beginning of the next shift, said the arbitrator. e arbitrator found there wasn't just cause for dismissal. Federal-Mogul was ordered to reinstate Brownlie with a three- week unpaid suspension. However, because Brownlie's actions "contributed signifi cant- ly to this dispute," Federal-Mogul wasn't re- quired to compensate Brownlie for lost pay since the dismissal. For more information see: • Federal Mogul Windsor Ltd. and CAW, Lo- cal 195 (Brownlie), Re, 2013 CarswellOnt 4966 (Ont. Arb.). YOU MAKE THE CALL Did the company have just cause for dismissal? OR Was dismissal an inappropriate response?

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