Canadian Employment Law Today

6 | August 31, 2016 Canadian HR Reporter, a Thomson Reuters business 2016 Cases and Trends tightly controlled. As a result, the worker and other personnel were required to wear identification cards while inside the base. His job involved a 12-week rotation followed by four weeks of vacation, where he was responsible for the dispatch of 50 vehicles in base, who drove them, and vehicle maintenance. When the worker was hired, he also agreed to Atco's code of ethics as well as the National Defence Act's code of service discipline. Turner received positive performance reviews in June and August 2001. In February 2002, the worker organized a gathering of past members of the airborne regiment — an occasion he set up every second month. He had written down the amount of pizza to order from the base kitchen, but unbeknownst to him the or- der wasn't actually placed. When the pizza didn't arrive for the gathering, he got the impression an Atco manager had cancelled the food. e worker exchanged heated words with the manager and swore at him. e manager asked if the worker was threatening him and the worker replied, "I don't threaten. I follow through." Atco investigated the altercation, in- cluding interviewing the worker and the manager. It was determined that there was a miscommunication over the pizza order but the worker's conduct towards the man- ager was "inappropriate, inexcusable and belligerent." e worker was given a writ- ten warning stating his behaviour was un- acceptable and a repeat of it or similar be- haviour would result in discipline up to and including dismissal. e worker refused to accept the warning letter but it was placed in his employment file. Atco referred him to an employee assis- tance program for anger management but he didn't follow through. Worker suspected co-worker of theft About three months after the pizza inci- dent with the Atco manager, the worker was on duty at the dispatch office when a soldier left a television with the instructions to have it delivered to another army base. e worker left the television in a box with no instructions and went off shift for four days. While he was gone, another dispatch- er came on duty, saw the television, and as- sumed it was for the driver's room since the drivers and dispatch had been requesting a new television. She had a driver install the set in the driver's lounge. When the worker returned to duty, he realized the mistake and had the television delivered as requested. He then confronted the other dispatcher as to why she dealt with the television the way she did. e other dispatcher didn't see a problem, since it was the worker's mistake in not labelling the box. However, the worker accused her of theft and commented to another dis- patcher that "People around here are act- ing like a bunch of Somalians, a bunch of thieves." A short time later, in July 2002, the work- er was on duty when a soldier asked him about a bag that was left in a vehicle. Some- one else overheard and said the bag had been handed into dispatch earlier, which made the worker suspicious that the other dispatcher had taken it. e bag was later returned to dispatch and when the worker gave it to the soldier, the solider gave him a look that the worker took to think soldiers thought the dispatch- ers were thieves. e worker complained to his supervisor that the other dispatcher had stolen the bag and then returned it. e supervisor didn't do anything about the worker's complaint, so the worker took it upon himself to discuss the matter with the other dispatcher. According to the other dispatcher, the worker came into the office, walked up behind her, then walked away and told her he had experience as a detec- tive and she was a thief. He also said such behaviour made all Atco employees look bad to the military. She claimed the worker acted aggressively and was trying to intimi- date her, and when she suggested they go to the military police if there was an investiga- tion the worker suggested he could set her up to look like a thief. e other dispatcher made a formal com- plaint of harassment to Atco. She said she was scared of the worker because of his be- haviour towards her and had seen him act angrily and aggressively with others at the base. She checked with the military police three times to see if there was an investiga- tion and to say she was afraid of the worker when he returned after his one-month leave. Foiled attempts at resolution When the worker returned, Atco held a meeting to discuss the harassment com- plaint. e other dispatcher added that the worker had mentioned he had "friends that break legs and take care of problems for him." e worker denied calling her a thief or threatening her, but acted aggressively and angrily in the meeting. e other dispatcher said she could work with the worker if she could feel safe and free from intimidation, but the worker said that didn't make sense if she was afraid of him. He finally said "Either she goes, or I go," thinking one of them could be trans- ferred to another job at that base or another base Atco managed. Atco decided that the worker was an em- barrassment and a liability for the company and there were no vacancies at Camp Black Bear, so it terminated his employment on Oct. 16, 2002. e termination letter stated that it couldn't rely on the worker to inter- act with fellow employees in an acceptable manner. e worker became aware of rumours about his dismissal circulating in the mili- tary. Some were that he was a sexual preda- tor, others accused him of selling arms to the Irish Republican Army. However, most soldiers he talked to about it thought the ru- mours were ridiculous. e worker sued Atco for wrongful dis- missal and defamation. He argued he was a strong performer and he made appropri- ate inquiries about the television and bag to avoid embarrassment for Atco, and Atco should have found another position for ei- ther himself or the other dispatcher. e case was entangled in the legal sys- tem for 12 years before reaching the Alber- ta Court of Queen's Bench. e court noted that Atco had to keep in mind that the other dispatcher had the right to be free from the worker's intimidating behaviour and the worker gave Atco an ultimatum: "Either she goes, or I go." is meant there could be no resolution where both employees would continue in their current employment. e court found Atco followed its policy in dealing with the complaint and tried to resolve the matter. However, the worker was "assertive, bordering on aggressive and certainly not conciliatory." Atco was aware that the worker had pre- viously been offered assistance with his an- ger and aggressiveness and he had a previ- ous warning about such behaviour. When he acted dismissive of the mediation pro- cess, there wasn't much Atco could do, said the court. e court also noted that Atco didn't have a duty to find a position for the worker else- where because his employment contract was for "a certain position in a certain place which the employer could not unilaterally change." Given the workplace was a small military base, the worker breached his ob- ligations when he intimidated a co-worker with the same job and refused to work with her, said the court. e court found Atco had just cause to terminate the worker's employment. It also found Atco was not responsible for the ru- mours going through military circles and there wasn't evidence of real harm to his reputation or that the worker suffered acute mental stress because of them. e worker's claim for wrongful dismiss- al and defamation was dismissed. For more information see: • Turner v. Atco Frontec Corp., 2016 Car- swellAlta 854 (Alta. Q.B.). 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