Canadian Employment Law Today

6 | April 1, 2015 Canadian HR Reporter, a Thomson Reuters business 2015 Cases and Trends Comment could only be interpreted as racist claimed Elliott then walked in front of him and bumped into him. en, said McCarthy, Elliott "walked beside me, shoved me with his shoulder and forearm out of the way." A captain came into the kitchen and told them to stop arguing. When Elliott turned to face the captain, McCarthy punched him in the face. He later said he felt Elliott was acting aggressive towards him and "the best defence is a strong offence." McCarthy claimed he was worried about Elliott's aggression because Elliott had a his- tory of making worrisome comments. He said Elliott often talked about knives and guns and doing things to people he thought had wronged him. He specifically remem- bered an incident where Elliott said he didn't think the union supported him and he want- ed to break into the local president's house and engrave his name with a knife in the lo- cal president's wife's forehead while she was sleeping. McCarthy also claimed Elliott had said numerous times he was making a list of people who he felt had done him wrong. Elliott agreed McCarthy became angry, but said McCarthy chased him around the kitchen and belittled him with various com- ments about how he was at fault in a number of situations. He said McCarthy came within inches of his face and blocked his way. Elliott claimed he had shoved McCarthy aside to get to a table, when McCarhy hit him from behind on the right temple. When the captain intervened, Elliott said McCar- thy yelled "we'll finish this after work." El- liott replied it would be "like fighting an old man" and when McCarthy tried to push past the captain, Elliott slapped him in the face and said: "We're even now, forget about it." racial comment added fuel to fire ree days later, on Aug. 7, Elliott was on a call relating to a gas leak with McCarthy and some other firefighters. Elliott claimed they teased him about his black eye and, after a while, Elliott finally said he was at the zoo where he got hit by a monkey. McCarthy, who was black, didn't hear the comment but the other firefighters were shocked. McCarthy learned of the comment and decided he couldn't work with Elliott any- more because he didn't trust him and felt El- liott didn't see him as a human. He believed trust in fellow firefighters was essential. McCarthy told the captain that he wanted to move to another station and said to Elliott that "your true nature has reared its ugly head." Elliott said he didn't mean the com- ment "that way," but it was agreed to keep the matter in-house to avoid discipline if Elliott went to another station where there was an opening. Elliott testified he apolo- gized to McCarthy a couple of times. However, the acting district chief and pla- toon chief caught wind of the situation and passed it along to the chief and deputy chief, who launched an investigation. e chief met with representatives of the Fire Fighters Association, who told him there were concerns about safety, racism and violence in the stations, as well as sev- eral fire fighters who felt unsafe working with Elliott. It was determined Elliott took no responsibility for his actions or his part in fostering the uneasy environment at his station. e chief felt Elliott's incidents with McCarthy and others involved "violence in the workplace with racial overtones." Elliott denied making a comment about carving his name in the forehead of the union local president's wife. He said it came after a discussion of a movie where people carved words into foreheads, and that may have led to confusion. A fire inspector who was friends with McCarthy recalled Mc- Carthy telling her about Elliott making a comment about hurting someone in the local president's family but didn't remem- ber specifics. She said neither she nor Mc- Carthy believed that Elliott was serious and had agreed he had probably said it for shock value. Upon the conclusion of the investigation, McCarthy — who had 20 years of service and a clean disciplinary record — was given a five-day suspension for his part in the Aug. 4 altercation. Concerns over conduct lead to termination e chief decided to terminate Elliott's em- ployment because he was the antagonist who initiated physical contact in the Aug. 4 altercation, he made a racist comment on Aug. 7, and he failed to accept responsibil- ity for his actions. e fact that co-workers refused to work with Elliott, there was a lack of trust, Elliott displayed animosity towards management and co-workers, and he con- tributed to a poisoned work environment made it impossible to continue the employ- ment relationship, said the chief. Elliott was terminated for cause on Sept. 11, 2012. e arbitrator found the alleged com- ment about the local president's wife wasn't taken seriously by those who were aware of it at the time and wasn't a significant factor in the decision to terminate. e arbitrator also found Elliott was "not a conventional individual" whose opinions could be irritating to others and he "does not appear to be one for political correctness." is attitude contributed to the Aug. 4 in- cident and Elliott did nothing to diffuse the situation when McCarthy became angry. However, though he shoved McCarthy and responded to the punch with a slap, it was McCarthy's slap that was the worst element of the incident, said the arbitrator. However, the arbitrator also found El- liott's comment three days later about being hit by a monkey was "obviously inexcus- able." ough Elliott may not have meant for it to be racist, it could only be understood to be racist and McCarthy had every right to feel degraded, said the arbitrator. e arbitrator determined the incidents were not worthy of career-ending discipline for a firefighter with significant seniority. ere were indications Elliott regretted the way things happened and he testified he wanted to return to the fire service and apol- ogize. ere was no evident of "exceptional hostility to management, his colleagues, or to his union" and there was no pattern of racist conduct, said the arbitrator. e city was ordered to reinstate Elliott with the same five-day suspension McCar- thy received for the altercation, plus a 10- day suspension for the monkey remark and compensation for lost pay. See Hamilton (City) and Hamilton Professional Fire Fight- ers Assn. (Elliott), Re, 2015 CarswellOnt 2334 (Ont. Arb.). employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog includes a tool for readers to offer their comments, so discussion is welcome and encouraged. The blog features topics such as workplace violence, drug and alcohol testing, dependent contractors, and progressive discipline. You can view the blog at www.employmentlawtoday.com. « from FIReFIGHteR on page 1

• Cover