Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2015 April 29, 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. asked him multiple times if he was willing to remove posters, and the worker refused to give an answer and kept saying he had the medical information, then said 'you pull the trigger." e manager decided the worker was refusing his assignment and told him he was suspended for one day. e worker testified he felt he was being indefinitely suspended, so he approached the manager's desk and loudly asked him if he wanted him to work there. e manager said yes, but the worker continued to ask if he wanted his resignation. e manager said no, but he wanted the worker to perform his assigned du - ties. e manager finally asked the worker to leave the workplace, and the worker left the office. As he exited the office, he loudly said "Go f--- yourselves and made an obscene gesture with both his hands at other supervisors nearby. e worker went to his car in the em - ployee parking lot, but drove back towards the office. He claimed he wanted to pick up his personal effects as he felt he had been terminated. However, he saw a supervisor standing near the door into the office along with the manager, who had come out to en - sure the worker had left the workplace. According to the supervisor and the man- ager, the worker stopped his car, got out and yelled profanities at them. He approached the supervisor, accused him of starting "all this," and then said "I hope you drop dead from the bottle of rum my family sent you." He had sent the bottle to the supervisor when the worker needed bereavement leave. Before he left, the worker told them "I'll be back and shoot you." e manager and the supervisor were both shocked. e worker claimed he said "I will be back and I will show you," but the videoclip appeared to show he said "shoot." e manager made a video of part of the incident with his cellphone. e video re - corded the worker's comments to the super- visor and swearing at both men, as well as "shoot you" comment. ey took the com- ment seriously so the manager called the police, who spoke to the worker at his home. No charges were laid. e city decided to suspend the worker indefinitely pending investigation of his con - duct. Other supervisors and employees were interviewed and many indicated they had heard the worker shouting, swearing and making obscene gestures. Management met with the worker on June 7 to get his side of things. It held the meeting in a location where corporate security was easily accessible in case the worker acted out again. On the advice of his own legal coun - sel, the worker responded "no comment" to every question they asked about the incident. is was due to the police investigation, but provided the city with no information from the worker. e city dismissed the worker due to his breach of its workplace violence policy and the violence and harassment section of the Ontario Occupational Health and Safety Act, as well as his insubordination for re - fusing assigned work. In addition, since the worker was still on probation, the city felt it was within its right to dismiss him. e arbitrator found the threat may have been made "in the course of a momentary flare up, but one cannot forget that the (worker) had been told to leave the work - place, had done so, and then returned in order to be more abusive and threatening." ere was no provocation for the threats, even if the worker was feeling frustrated, said the arbitrator. e arbitrator also found the city conduct - ed a fair and reasonable investigation and gave the worker an opportunity to explain himself. In addition, it operated within the functional abilities information it had for the worker and asked him for more medical informa - tion to support his refusal to do the assigned work. ere was no indication of bad faith on the part of the city, and it was important to n o t e that the worker had only been given a one- day suspension for refusing work initially. It was only after his abusive and threatening misconduct when the suspension became longer and ulti - mately led to the worker's dismissal. e dis- missal had nothing to do with his disability or WSIB claim, said the arbitrator in uphold- ing the suspension and dismissal. For more information see: • Toronto (City) and TCEU, Local 416 (Par- ris), Re, 2015 CarswellOnt 3891 (Ont. Arb.). CREDIT: HUYSMAN GEERT/SHUTTERSTOCK

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