Canadian Employment Law Today

April 1, 2015

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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PM40065782 Emplo y ment Law Today Canad ad a ian April 1, 2015 Firefi ghter fi red after fi ght and racial comments Racial comments following physical altercation warranted discipline but employment relationship not irreparably damaged: Arbitrator By JEffrEy r. SmiTh THe CiTY of Hamilton did not have just cause to dismiss a fi refi ghter who got in a fi ght and made others feel unsafe at work, an Ontario arbitrator has ruled. Shawn Elliott was a fi refi ghter for the Hamilton, Ont., fi re service, joining in Sep- tember 2002. Within 10 years, Elliott at- tained the position of acting captain. Elliott had some diff erences with another fi refi ghter, John McCarthy, over a few years, but things had not progressed beyond mi- nor disagreements. On one occasion, Elliott said McCarthy had threatened him for using a cellphone in the dorm at night, saying he would "shove it up my nose" if it rang again. However, on Aug. 4, 2012, things esca- lated. e fi re station was scheduled to be cleaned that day and McCarthy believed Elliott hadn't done his share of cleaning. He told Elliott as much and Elliott responded by dismissing him and saying "I don't have time for you today." e two men proceeded to argue, leading to each man pointing out the defi ciencies of the other as a fi refi ghter. e argument became personal and El- liott went into the station kitchen, McCar- thy followed him and continued to argue. Both raised their voices and McCarthy driver doesn't get message on cellphone use pg. 3 Employee downplayed breach of policy and law with Stuart Rudner CREDIT: JOHN HANLEY/SHUTTERSTOCK Stalking someone is bad – especially while on duty pg. 4 Worker's intimidation of woman while in company van on duty and attempts to cover it up were just cause for dismissal coMMent on page 6 » aSK an eXPeRt pg. 2 The threshold for just cause InaPPRoPRIate on page 7 » employer pulls plug on inappropriate emails A MAniTObA government employee ir- reparably damaged the employment rela- tionship with inappropriate computer use at work for two years, an arbitrator has ruled. e 54-year-old employee, referred to as K.S. in the decision, was a "designated offi cer" working as a court clerk in the maintenance enforcement program for the province of Manitoba. He worked for the province for 30 years with no performance problems. His only discipline came in 1997 when he suspended for seven days for plac- ing "sexist, profane, vulgar, and in short highly objectionable" material on his gov- ernment computer from correspondence between himself and others outside of the offi ce. K.S. was told his computer was for work only and using it for personal matters was prohibited. K.S. admitted his miscon- duct and apologized. e province warned him similar conduct would be subject to dis- cipline up to and including dismissal. In fall of 2013, the province conducted an investigation into the conduct of several employees. e investigation revealed sus- picious activity on K.S.'s offi ce computer, so the city conducted an audit of his computer usage. e audit uncovered "hundreds of personal emails of an inappropriate nature" on his computer, including ones with pic- tures and jokes unrelated to his work. is included photographs of naked women, pic- tures of sexual activity, and lewd jokes. Most of the emails were ones K.S. sent — some to other government employees, some to outside people — though some he received. Very few were sent to co-workers in the maintenance enforcement program. Some of the emails included negative and sarcastic remarks about the work of govern- ment employees. is angered K.S.'s direc- tor, who felt it encouraged an incorrect view of her staff who were hard-working. e emails were spread over a period of two years and breached several government policies, of which all employees should have been aware, including that government computers should not be used for personal purposes or for accessing pornography. It was decided K.S. should be dismissed, but the province called a meeting to give him a chance to explain his actions. K.S. didn't

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