Canadian HR Reporter

Canadian HR RepoRteR March 9, 2015 6 employmeNt lAw/News from the workplace, but he want- ed him to stop the remarks. In his interview, Gramescu de- nied calling Akera a monkey and then refused to answer any further questions, acting aggressively. He kept interrupting the labour relations consultant conducting the interview and the foreman had to tell him to be respectful. The meeting ended with Gramescu no longer answering questions and not making eye contact, according to the foreman. Gramescu also made no offer of an apology. e City determined Grames- cu committed serious breaches of its respectful workplace and workplace violence policies and violated Akera's human rights by discriminating against him with racial slurs and making a threat- ening remark about his skin. It ter- minated Gramescu's employment on March 26, 2012. Arbitrator looks at policy e arbitrator found that from the beginning, the City was con- cerned with following its respect- ful workplace policy, as the fore- man who notified management of Akera's complaint brought it up immediately. ough the policy set out procedures for addressing harassment and discrimination claims through mediation and resolution, the collective agree- ment did not bind the City to fol- low the policy. e City retained its right to in- vestigate and take a course of ac- tion it deemed appropriate as part of its managerial responsibilities, said the arbitrator. Gramescu's denials were lack- ing in credibility, found the arbi- trator, as he was evasive both in his interview and his testimony. e other employees who were interviewed were straightforward and had little motivation to lie. As a result, the arbitrator decided Gramescu had made the racist comments to Akera. Profanity in itself wasn't nec- essarily reason for discipline in the environment of a city garage, said the arbitrator, and if the cir- cumstances were only "a simple verbal exchange with shop floor language," lesser discipline might have been appropriate. However, Gramescu had made "clear racist comments coupled with a salacious comment about Mr. Akera's mother." In addition, they were ongoing slurs that went on for three straight days and made Akera sad and fearful of Gramescu. e other employees interviewed agreed Gramescu had "crossed the line with his comments." Since Gramescu had less than two-and-a-half years of full-time service, his co-workers didn't want to work with him, he failed to apologize in a timely manner, he failed to acknowledge the com- ments and he didn't show respect for the interview process, the arbi- trator found dismissal was an ap- propriate response to Gramescu's racial harassment of Akera. For more information see: • Edmonton (City) and CUPE, Lo- cal 30 (Gramescu), Re, 2015 Car- swellAlta 105 (Alta. Arb.). Jeffrey R. Smith is the editor of Cana- dian Employment Law Today, a pub- lication that looks at workplace law from a business perspective. He can be reached at Jeffrey.r.smith@thomson- reuters.com or visit www.employment- lawtoday.com for more information. Worker had reviewed respectful workplace policy FiriNg < pg. 5 ESA changes inspection by an employment standards officer. But good agencies will have the due diligence in place, said Butler. "And they can share that re- cordkeeping with the client and it takes that responsibility or the onus of responsibility off the client completely... e agency should be able to share the access to the in- formation... (otherwise) it is doing the work twice, it's cumbersome." It would be ideal if the agency shared its recordkeeping so ef- forts aren't duplicated, said Cunningham. "From a diligence or best prac- tice point of view, it'll be impor- tant for employers using tempo- rary workers to make sure that they have their own records of all of those, or maybe it's copies of the agency's records, because they ul- timately want to be in a position, if it comes to it, to deny that they have any additional liability." The Employment Standards Act already required a slew of em- ployment records to be kept for three years, so employers should have been holding on to certain records already, he said. "But the extension of that limi- tation period and the removal of the cap just reinforces that you should be keeping those records because it may now take longer for these claims to come out of the woodwork." Another change, effective May 20, concerns posters displaying rights and obligations around Ontario's act. While previously employers were required to display an up- dated version, they now have to provide each employee with a copy of the poster. "What this does (is) increase employee education about their rights, and so... in workplaces that aren't complying with the Em- ployment Standards Act, you're going to see more complaints," said MacLeod. "It'll have quite an impact, par- ticularly on places where there's vulnerable workers… having these posters distributed, the penny's going to drop in a lot of workplaces and change workplaces' practices so they come into compliance." oNtArio < pg. 3

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