Canadian Employment Law Today

April 15, 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.

Issue link: https://digital.hrreporter.com/i/492091

Contents of this Issue

Navigation

Page 4 of 7

Canadian HR Reporter, a Thomson Reuters business 2015 April 15, 2015 | Canadian Employment Law Today ABOUT THE AUTHOR JEFFREY R. SMITH Jeffrey R. Smith is the editor of Canadian Employment Law Today. He can be reached at jeffrey.r.smith@thomsonreuters.com, or visit www. employmentlawtoday.com for more information. an online poker website containing a tem- porary password. ere was no evidence Greer actually played online poker at work, however. Greer was questioned about the emails he received and he said he didn't recall any on- line policy training — though he signed an acknowledgement in February 2011 that he understood and agreed to it. He explained he used his work email to set up the online poker account because it was more secure than his personal email, but expressed regret in doing so. He denied playing online poker at work. On March 25, 2013, Lanxess terminated Greer's employment. e termination let - ter stated that his delayed response to the emergency call was "yet another example of your inability and/or refusal to carry out your tasks responsibly" after his previous sus - pensions. e company also said his use of company resources to access online gaming sites was "particularly troubling" since he has been disciplined for sleeping on the job pre - viously. e letter concluded by saying the two incidents along with his past disciplinary record provided just cause for dismissal. e arbitrator first addressed the accusa - tion of accessing an online gaming site while at work. ough Greer received emails to his work account from the site, including a temporary password and promotional ma - terial, there was nothing to indicate Greer accessed the site or gambled while at work. Lanxess inferred that Greer must have in order to have the password sent to his work email, but the arbitrator refused to make the same inference without definite evidence. In addition, the only employee who was disci - plined under the online policy had sent inap- propriate and offensive emails to other em- ployees. It was unfair to single Greer out for personal use of the company's communica- tion systems, said the arbitrator. e arbitra- tor found there was no basis to support this ground for discipline. However, the arbitrator found the bar for expectations was high for someone in the po - sition of firefighter. e general performance standard of a firefighter was to respond to an emergency as quickly and immediately as possible, and Greer, through his training, would be aware of this standard, said the ar - bitrator. "…It is fundamental and obvious that a firefighter in order to meet the high standard of care inherent in the position of a firefight - er, has a clear and pressing obligation, given the potential dire consequences, to respond to an emergency fire alert as quickly as pos- sible," said the arbitrator. e arbitrator found the amount of time Greer took to respond to the call was un- reasonable, given his training and the fact he had the radio with him. His explanation of "tunnel vision" requiring him to request a repeat of the call was dubious and "has all the hallmarks of a self-serving and contrived excuse," said the arbitrator. In addition, there was no mention of "tunnel vision" until his interview. e arbitrator also found Greer didn't keep the fire truck clear of snow, which con - tributed to the delay and could have been worse if the fire captain hadn't been there to help. He testified he cleaned snow from the truck earlier that night, but in his interview he said he had been complacent. is incon - sistency hurt Greer's credibility, particularly since he also said the roads weren't plowed that night when all reports indicated Lanxess had plowed, sanded and salted the roads. e arbitrator found that Greer's delayed response was "not egregious conduct that would warrant immediate dismissal," but given his disciplinary record, it was "properly a culminating incident" upon which Lanxess could rely for just cause. e arbitrator noted that Greer had made written promises af - ter his previous misconduct to improve his performance and follow company policies. However, he "wasn't getting the message" and he continued to deny doing anything wrong that contributed to his delayed re - sponse on Feb. 8, 2013. e arbitrator upheld the dismissal. For more information see: • Lanxess Inc. and Unifor, Local 914 (Freer), Re, 2015 CarswellOnt 3258 (Ont. Arb.). CREDIT: KEFCA/SHUTTERSTOCK

Articles in this issue

Links on this page

Archives of this issue

view archives of Canadian Employment Law Today - April 15, 2015