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 ©2015 Thomson Reuters Canada Ltd. All rights reserved. Emplo y ment Law Today Canad ad 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 Worker fi red for assault complaint against supervisor THiS inSTALMEnT of You Make the Call features a worker who fi led a complaint of workplace violence against a supervisor. Julien Boileau was a lift operator in a Hawkesbury, Ont., warehouse run by DB Ontario, a pharmacy chain distributor. He was hired in 2007. On Aug. 6, 2014, the day after Boileau served a one-day suspension, he fi lled out a company complaint form describing an altercation with one of the warehouse su- pervisors. Boileau claimed he was standing by an offi ce window making adjustments to his scanning gun when the supervisor came down the corridor towards him. According to Boileau, the supervisor walked quickly over to him and deliberately ran into him with "a sharp blow" from his shoulder. e supervisor said nothing and just walked away, making no acknowledgment of the collision, said Boileau. e union president happened to be standing nearby, so Boileau asked her if she saw the collision. She didn't, but told him he had the right to fi le a written complaint. Boi- leau claims another employee told him she witnessed the incident. However, this em- ployee declined his request to sign a state- ment related to his complaint and, when the company asked her about it as part of its investigation, said she only saw the supervi- sor turn his back on Boileau as he passed by, with no contact. e company continued to investigate Boileau's complaint as it considered it a serious issue. Boileau was interviewed and he said the supervisor appeared to be in a bad mood at the time and he gave Boileau a deliberate and solid blow with his shoulder. e supervisor was also interviewed and he denied making any physical contact with Boileau. e supervisor claimed later that same day Boileau asked him about changes that had been made to the schedule rotation system, but the supervisor felt that issue had been resolved for some time and refused to talk about it. e supervisor obtained footage from a security camera that covered the area where the alleged incident took place and shared it with the company president. e footage showed the supervisor exiting an offi ce and passing by Boileau with no apparent contact made. e company's investigation concluded that there had been no physical contact be- tween Boileau and the supervisor and, as a result, Boileau made a false accusation that broke the bond of trust between the com- pany and Boileau. Since an allegation of as- sault was considered very serious, Boileau's employment was terminated. When told of his termination, Boileau expressed surprise and continued to insist the supervisor had deliberately and forcibly walked into him in the corridor. e union grieved the dismissal, arguing Boileau didn't intend to make a false allega- tion and he followed the proper procedure when he legitimately felt harassed. It also said the complaint raised a health and safety issue and the dismissal was a reprisal. you MaKe tHe Call Did the employer have just cause for dismissal for employee dishonesty? OR Did the dismissal constitute a reprisal? iF YOU SAiD there was just cause for dis- missal, you're right. e arbitrator found no evidence supporting Boileau's complaint, with the most compelling evidence being the security footage that showed the super- visor walking past Boileau with no contact between them. Combined with other evidence, such as the other employee's testimony that she didn't see any contact, the only logical con- clusion was that Boileau falsifi ed his com- plaint — a complaint that could have had serious ramifi cations. "It goes without saying that accusing (the supervisor) of deliberately infl icting a shoulder blow upon him is tantamount to an accusation of physical assault which, if accepted, could have extremely negative consequences to (the supervisor), without any valid cause," said the arbitrator. e arbitrator also found the company's investigation was "both fair and careful." e president was involved and the relevant employees, along with both Boileau and the supervisor, were interviewed. Security cam- era footage valuable to the determination of what happened was obtained and viewed and the fi nal decision was diffi cult to dis- pute, said the arbitrator. e fact that Boileau maintained his story right to the end, even after he was terminated, was "a sequence of repeated falsehoods" that improperly accused the supervisor of physi- cal assault. Noting that the accusation was "obviously calculated to cause extreme nega- tive consequences to the supervisor," the ar- bitrator found Boileau's misconduct severed the bond of trust necessary for an ongoing employment relationship. In addition, in the face of overwhelming evidence disproving his story, Boileau didn't change his account or apologize. e dismissal was upheld. See DB Ontario Inc. and USW, Local 3327 (Boi- leau), Re, 2014 CarswellOnt 18210 (Ont. Arb.).

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