Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2015 8 | May 27, 2015 More Cases Lengthy suspension appropriate for long-term employee's first offence: Board A 20-DAY suspension was an appropriate level of discipline for a long-term employee's serious misconduct, the Ontario Grievance Settlement Board has ruled. Daniela Basta was a customer care rep - resentative at a Service Ontario call centre, mostly working on the health line for the Ontario Ministry of Health. She was hired by Service Ontario in 1995 and had a clean dis - ciplinary record. Basta and her fellow customer care rep- resentatives on the health line received calls from people looking for health advice and were expected to answer calls in a prompt, courteous, and patient way and provide accu - rate information to callers. Customer service was important to Service Ontario as it want- ed to ensure the public viewed it as a caring organization with quality customer service. e organization conducted client surveys four times a year to ensure that people were happy with its level of service and expecta - tions were exceeded. On June 30, 2014, Basta spoke inappro- priately to a customer calling the health line seeking treatment for mental health issues, without provocation by the caller. Basta didn't bring the incident to the attention of manage - ment and continued to talk about it to her co-workers for days afterwards. When she spoke about it, she didn't show any regret or remorse about how the call went down. Nearly three weeks later, on July 18, Ser - vice Ontario management learned of the incident and asked Basta about it. Basta ac- knowledged the incident had taken place but didn't make any apology or express any re- morse. e operations manager was "deeply dis- turbed" by how Basta handled a caller who was in a fragile state of mind, without any provocation. He was also worried if the caller told people about the call and how it would impact Service Ontario's image. In addition, he was concerned about how Basta discussed the incident with her co-workers, was un - apologetic, and failed to bring the matter to management's attention. In his mind, this made it likely Basta would do it again. Service Ontario decided a 20-day unpaid suspension would be appropriate discipline and provided Basta with written notification on Aug. 14. Basta responded by acknowl - edging her behaviour was inappropriate and apologized. However, the next day the union filed a grievance claiming the suspension was too harsh since it was an isolated incident and the only discipline on Basta's record. Basta testified she made a "big mistake," demonstrated a lack of professionalism, and "should not have let the caller get under her skin." She acknowledged she didn't follow Service Ontario standards and showed poor judgment when she didn't tell management about the incident. She also said if she acted that way again, her employment should be terminated. However, she felt with her length of service and record, a 20-day suspension was too much. e board noted both Service Ontario, the union and Basta agreed her conduct was se - rious. It found Service Ontario had "a valid business interest in having its staff interact with the public in a professional, courteous, civil, and accurate matter," and Basta's con - duct went against this interest. e board found that at no point in the wake of the incident did Basta show any remorse for her conduct, until she was disciplined. is made it reasonable that the level of discipline fall in the upper part of the possible range of what can be considered reasonable. Since the 20-day suspension fell within that range, the board found no reason to change it. "e quantum of discipline imposed makes clear that the misconduct was serious, yet falls short of termination, thereby recog - nizing the application of mitigating factors as set out in the disciplinary letter of Aug. 14, 2014," said the board. See OPSEU and On- tario (Ministry of Government and Consumer Services) (Apr. 1, 2015), D. R. Williamson – V-Chair (Ont. Grievance Settlement Bd.). was going to take a few days off. On Sept. 10, he returned to the office to speak with Allen about his unpaid wages, but Allen yelled at him and insulted him. Kannaiti left without getting a chance to talk. Kannaiti exchanged some phone calls and text messages with Allen and he agreed to come to the office again on Sept. 13. When he arrived, Allen wasn't there and Allen's busi- ness partner said she didn't want to be part of the dispute. About 30 minutes later, Allen arrived and acted like Kannaiti was late for work, telling him to start working on docu- ments. Kannaiti responded that he wanted to be paid first and Allen started yelling at him. According to Kannaiti, Allen said she had told people "what you had done" and she should call them to "chop off your head." She also yelled, "you are only an immigrant, you are not a citizen," though Kannaiti was born in Canada. Kannaiti testified that he asked Allen again about his pay and she once again yelled at him, saying "I will not pay. Go cry about it you Muslim terrorist." Kan- naiti claimed she called him a terrorist a few more times and said he was from "a terrorist country" before he left. Kannaiti said that as he left, Allen's busi- ness partner was standing there. He real- ized she had heard everything but had done nothing. He testified he was "devastated" and felt afraid to reveal his origin, ethnicity or religion going forward. He found it diffi- cult to sleep for a couple of weeks afterwards and it caused emotional pain. He also had to borrow money and fell behind in his rent. Kannaiti eventually reported the incident to the police, who advised him to file a hu- man rights complaint. Kannaiti also filed a claim with the On- tario Ministry of Labour for unpaid wages, termination pay and vacation pay. In April 2014 an employment standards officer ordered Allen to pay Kannaiti more than $4,000, but a year later Kannaiti still had not received anything. e tribunal found Allen's aggressive be- haviour towards Kannaiti constituted ha- rassment. ough it may have been a retali- ation for Kannaiti's assertion of his right to be paid, the refusal to pay itself wasn't based on his race, religion, or any other protected ground under the Ontario Human Rights Code. However, they way Allen retaliated was discrimination under the code, said the tribunal. e tribunal found Allen's statements that he was "only an immigrant" and called him a "Muslim terrorist" were clearly based on race, ancestry, place of origin, citizen- ship, and ethnic origin and were "so egre- gious and contemptuous as to amount to discrimination." e tribunal also found Kannaiti was entitled to monetary compensation in the higher range of damages because Allen's comments "were particularly repugnant and had a serious impact." In addition, Kan- naiti was entitled to compensation for loss of earnings from the company's failure to pay him what he was owed until the end of the training incentive placement agree- ment, which would have been another two weeks until the end of September 2013. Allen was ordered to pay Kannaiti $960.52 in lost wages and $7,500 for injury to dignity, feelings and self-respect caused by discrimi- nation, plus interest. See Kannaiti v. Allen, 2015 HRTO 502 (Ont. Human Rights Trib.). « from WORKER ASKS on page 1 Comments were 'particularly repugnant'

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