Canadian Employment Law Today

September 16, 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.

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GST #897176350 Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: Carswell.customerrelations Website: Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Carswell Media: Karen Lorimer Publisher: John Hobel Managing Editor: Todd Humber Editor: Jeffrey R. Smith E-mail: ©2015 Thomson Reuters Canada Ltd. All rights reserved. Emplo y ment Law Today Canad ad a ian How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 THIS EDITION of You Make the Call involves an employee who was fi red after sending racist texts to a co-worker. e employee was an equipment op- erator for Evraz North America, a man- ufacturer of pipes and related products in Calgary, hired in June 2012. e em- ployee worked at one of two facilities in Calgary — sometimes with a co-worker with whom he was roommates for a pe- riod of time. ere were some issues between the two, so the co-worker decided to move out in February 2014. e day the co- worker moved out, he worked a night shift when the employee wasn't work- ing, so they didn't see each other. Early in the shift, the employee sent a text to the co-worker and they exchanged a few texts. e co-worker asked the employee for $20 that the employee owed him. e employee later responded with a vulgar comment and a racist slur. Later, the employee sent another text to the co- worker saying "Hahah you're a toothless broke ass n-----." e co-worker didn't like the language used in the texts and showed them to a supervisor. e supervisor brought it to the attention of the general manager in mid-March, who felt the texts violated the company's anti-harassment policy. e policy forbade discrimination based on many things including race. All em- ployees had been shown the policy in safety meetings and the employee had signed a sheet stating he had attended a meeting in which the policy had been reviewed. e general manager discussed the texts with the employee, who said the texts contained slang he sometimes used with his co-worker. e employee ex- plained they had been roommates and socialized together, and he thought the co-worker would be comfortable with the words in the texts. At an investigation meeting, the em- ployee acknowledged the texts were "rude" but were supposed to be a joke and it was nothing more than "shop talk" between them. He claimed he used the racial slur frequently to describe the co- worker — who was black and the em- ployee was white — and didn't think the co-worker would be off ended. He also said he was drunk when he sent the texts and the $20 was money he had lent the co-worker to buy marijuana. e employee apologized to the gen- eral manager when he realized it looked bad, but didn't apologize to the co-work- er because he thought it would be better to "let things be, rather than escalate the issue." His union representative also told him he probably shouldn't contact the co-worker. e co-worker later stated that it would be "ridiculous" to have to work with the employee again. Evraz management determined the employee's texts were "deplorable," amounted to discrimination under hu- man rights legislation, and constituted just cause for dismissal. YOU MAKE THE CALL Was there just cause for dismissal? OR Should lesser discipline have been given? IF YOU SAID the employee deserved lesser discipline, you're right. e arbi- trator agreed the language of the texts was "deplorable" and were part of an exchange initiated by the employee. e arbitrator found the two were more than simply co-workers, however, because they were roommates for a time. ough the co-worker said they weren't close, the employee claimed they were buddies and hung out together. e social aspect of their relationship should be factored into analysis of the texts, said the arbi- trator. e arbitrator found the language used in the text was meant to be in the context of banter between friends that was not to be viewed by others. ough there may have been some tension due to the $20 debt, there was no indication there was serious confl ict between the employee and the co-worker, said the arbitrator. "I accept the (employee's) testimony that he considered the off ensive words to be good-natured slang between friends," said the arbitrator. " is is ignorance, not malice." However, the arbitrator also found that despite the comments not being ra- cially motivated, they were inappropri- ate when viewed objectively, could be expected to create off ence and constitut- ed racial harassment — which warranted discipline. ough the employee didn't apologize to the co-worker, he had reasons for not doing so on the advice of a union rep- resentative. In the investigation meeting, the employee acknowledged the texts were rude and disrespectful and apolo- gized to the company. Even though the co-worker said he couldn't work with the employee again, Evraz had other staffi ng options in which the two didn't have to work together — such as two diff erent facilities and multiple shifts. Evraz was ordered to reinstate the employee with a lengthy suspension instead. e time since the employee's dismissal — 12 months — was to serve as the suspension, so no compensa- tion for the dismissal was awarded. For more information see: • Evraz North America and USW, Local 6034 (Langan), Re, 2015 CarswellAlta 1332 (Alta. Arb.).

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