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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4 Canadian HR Reporter, a Thomson Reuters business 2015 Stalking someone is bad – especially while on duty Worker's intimidation of woman while in company van on duty and attempts to cover it up were just cause for dismissal By JEffrEy r. SmiTh A British Columbia arbitrator has upheld the termination of an employee who was dishonest about his actions in harassing his wife's boss while on company time. Fortis Energy is a natural gas dis- tributor in British Columbia. e em- ployee was a customer service techni- cian for the company in Vernon, B.C., hired in October 1987. His job involved servicing customers at their locations by travelling with his tools and equip- ment in a service van. He worked on his own, keeping his van at home dur- ing off hours and communicating with Fortis via cellphone, two-way radio and a pager. e van had a computer that allowed a dispatcher to schedule work and input location and work progress, which was used in customer billing. e company also was able to keep track of the van's location through an automated vehicle location system. On May 22, 2014, the employee was working when he received a text mes- sage from his wife saying she was be- ing called into a meeting with her boss. Soon after, she texted him again saying she was suspended for insulting a co- worker. After a few more exchanges, she texted to him "whatever you do, don't kill the bitch. at's the union's job." e employee responded "no gar- rontee (sic)." During his lunch that day, the em- ployee called the Fortis employee as- sistance program (EAP) to make an appointment because he was feeling stressed. Worker followed wife's boss e employee completed several assign- ments over the course of the day and also went home for a short period of time without informing Fortis. Later that af- ternoon, he recorded an overtime lunch of 30 minutes on his electronic timesheet. On his way to a customer in the mid-af- ternoon, he drove by the hospital where his wife worked and saw her boss' car in the parking lot. About a half-hour later, he returned to the hospital and parked in the parking lot for 22 minutes. When his wife's boss came out, she saw the Fortis van and thought it was blocking her path. She recognized the driver as the hus- band of the worker she had suspended and felt nervous. As she drove away, she confirmed he was following her and re- ported the licence plate number. e em- ployee noticed she was on her cellphone, pointed at his eyes and then at her while mouthing the words, "I'm watching you." Shortly after, the employee pulled away and drove home. Shortly after the employee arrived at home — where his wife was with two friends — a police officer came to the door. e officer warned the employ- ee that if he continued his behavour towards his wife's boss, he could be charged with criminal harassment. e next morning, the employee came to the manager's office upset and saying he had done something "stupid." He said he had followed a car with his wife and another man with his Fortis van — no mention was made of his wife's boss, or that the police visited him, as he later testified he didn't think anything would come of it and his em- ployer wouldn't find out. He said it was to protect his wife and the manager chalked it up to a personal problem, didn't inquire any further, and sent the employee home on compassionate leave, where the employee remained until a few days later. e employee later called and said he would be able to come back on May 28. e boss of the employee's wife called a Fortis customer service repre- sentative five days later — May 27 — to register a complaint. She then spoke to the employee's manager and informed him of what had happened. e man- ager was shocked and obtained a writ- ten account for the HR advisor. An investigative meeting was ar- ranged for the next day when the em- ployee was back at work. e manager asked the employee to relate every- thing that happened. e employee did so and apologized he had not told him everything before, but he had been up- set. He also said he had seen a psychia- trist and understood what he had done was inappropriate, it was on company time, and in a company vehicle. How- ever, he said his wife was being "tor- tured" by her boss and he felt he had to protect her. e employee was suspended with pay pending an investigation and turned in his keys, gate card, pager and cellphone. e investigation revealed the extent of his actions and the fact he failed to disclose them to the manager initially, he had claimed overtime when he was on lunch — which would have been billed to a customer — his time sheets didn't match with the actual work he did that day, and he spent time at home on May 22 when he should have been working. Fortis was also able to recover text messages on the employee's work cell- phone that he had deleted, including caSe In PoInt: JUST CAUSE EmpLoyEES who perform their job duties outside of the workplace usually have a high standard for conduct and employers must be able to trust them. Because they work outside of company property and often with little supervision, these employees have to be trusted to do their jobs on their own. There are ways to monitor employees through various technological means, but ultimately employers have to trust that the employees are being as productive as possible. When employees outside the workplace are wearing company uniforms or driving company vehicles with logos, there's an even greater responsibility on them to conduct themselves professionally. An employee misbehaving in public while sporting company logos can mean bad publicity and potentially lose customers. If an employee breaches the trust he has with the employer and threatens the employer's public image, then it could be grounds for dismissal — especially if police are involved and the employee lies about it. BACKGRoUND

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