Canadian Employment Law Today

Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2015 More Cases Inappropriate computer use apologize or acknowledge any wrongdoing, though he testified he would have if given a chance. A union representative told the di- rector outside of the meeting that K.S. rec- ognized what he did was wrong and asked if they would consider a six-month suspen- sion. e director would not without a sat- isfactory explanation. e province terminated K.S.'s employ- ment for "an excessive amount of highly inappropriate, discrespectful, degrading, racist and sexual and lascivious communi- cations" on a work computer, as well as for downloading personal photographs and video clips on a government computer. Four other employees were investigated for improper computer use. Of these, three resigned while another retired. e arbitrator found K.S.'s misconduct was "serious, persistent, and very troubling in terms of the nature and volume of the material he disseminated." It could not be categorized as impulsive, since it took place over two years, and he had an instance of prior discipline for similar misconduct, said the arbitrator. ough K.S. said he wasn't given an op- portunity to apologize, the arbitrator found he did have the opportunity at the meeting and did not provide any explanation or ac- knowledgment. ough K.S. testified he felt remorse for his actions, he made no attempt to express it before his grievance hearing. is raised the possibility his remorse came from his financial situation rather than his misconduct, said the arbitrator. e arbitrator agreed with the province that the extent of K.S.'s misconduct, consid- ering he had previous discipline for simi- lar misconduct, irreparably damaged the employment relationship. However, since other employees in similar situations were allowed to resign or retire, the arbitrator determined K.S. should be allowed to re- sign with its benefits and communications to third parties. If he did not resign within 30 days, the termination would remain in effect. See Manitoba (Province) and MGEU (S. (K.)), Re, 2015 CarswellMan 25 (Man. Arb.). « from eMaIlS on page 1 road rage incident puts brakes on truck driver's job An OnTAriO arbitrator has upheld the dismissal of a truck driver who failed to fol- low company policy and was involved in a road rage incident. Marcel Frechette, 48, drove a truck for Air Liquide Canada, a provider of gases, technologies and services for industry and health companies. Frechette had driven large trucks since 1994. Air Liquide trained its truck drivers on the importance of having self-control, the abil- ity to remain "calm and efficient in conflict or crisis situations" and resolve problems. is was important because the company had previously dealt with bad drivers, and their trucks were branded with the compa- ny name and often contained explosive gas. e company code of conduct also stipu- lated that employees needed to show good judgment, common sense and "commit to the highest standards of conduct in dealing with other employees, customers, suppliers, communities and stockholders." Frechette was familiar with the code of conduct as well as safety training that stressed leaving space between trucks and other drivers, courtesy, and lack of aggression. In addition, the Ontario Ministry of Transport handbook for trucks, which Air Liquide provided to drivers if asked and reviewed with Frechette, stated that driv- ers should stay in their vehicle and lock the doors if confronted by an angry driver. In 2009, the company showed Frechette and other drivers a video on road rage and gave them an action card that discussed the importance of being aware of triggers, re- maining in control and not reacting to other drivers' behaviour. ey were told to avoid road ragers by keeping their doors locked and windows up and staying in their vehicle. In 2012, Air Liquide was contacted by a truck driver from another company who said Frechette had been tailgating him, then passed him and pulled in closely in front of him. Air Liquide coached Frechetted about the incident but didn't discipline him. On Jan. 31, 2014, Frechette was driving an Air Liquide truck on an expressway near Toronto. According to Frechette, he tried to merge onto the expressway when another vehicle cut in front of him, pulled to the left and stopped in front of him. He was running out of ramp, so he tried to merge, but the driver of the other vehicle gave him the fin- ger, drove in front of him and braked hard. He said the other driver then jumped out of his car and approached the truck. Frechette claimed he wasn't thinking and was emotional, so he jumped out of the truck and approached the other driver. He then punched the other driver, knock- ing him unconscious and requiring him to call paramedics. Later, when police arrived and assessed the situation, they charged Frechette with assault. Frechette's supervisor arranged for an- other driver to pick up the truck at the scene and then picked Frechette up at the police station. Frechette told him "I never should have got out of the motor vehicle." On Feb. 7, Air Liquide terminated Frechette's employment for not following his training, breaching company policy and his act of physical aggression while on duty. e union argued Frechette was not the ag- gressor and he shouldn't have been expected to remain in the truck to get assaulted when the other driver approached. Frechette acknowledged he felt a "bit of anger" and apprehension and it was a "knee jerk reaction to get out," but he was the one attacked and got fired for it. e other driver filed a civil action against Frechette and Air Liquide, and the judge in that case found the driver approached Frechette's truck yelling and waving his arms, but didn't threaten to strike Frechette. e judge also found Frechette would not have been vulnerable if he had remained in his truck and called police. However, the judge found Frechette didn't intend bodily harm and was defending himself. e arbitrator agreed with the judge's findings that the other driver cut Frechette's truck off and drove dangerously, but found Frechette acted inappropriately afterwards. "What happened when the vehicles were stopped is of less concern to me than it was to the trial judge, because the attention of (Air Liquide) is on the fact that (Frechette) ignored all of his training and got out of his truck," said the arbitrator. "He opened him- self to the danger of violence, with serious consequences to himself, the (other driver), and the company." e arbitrator found Frechette made "a serious error of judgment at a critical time, by giving in to what in part was anger." Frechette should have shown more caution as he was trained to do, and he showed "little appreciation…that he did anything wrong," making it unlikely Air Liquide could trust him again, said the arbitrator in upholding the termination. See Air Liquide Canada and USW, Local 16506-39 (Frechette), Re, 2015 CarswellOnt 1724 (Ont. Arb.).

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