Canadian Employment Law Today

Canadian Employment Law Today | 9 Canadian HR Reporter, a Thomson Reuters business 2016 Cases and Trends damages but found punitive damages to be justified in light of the employer's actions, including a sub-standard investigation. e court's concerns included: the employer's failure to remain neutral, the appointment of an inexperienced investigator, the fact the employer had predetermined it would terminate, and the employer's overall treat- ment of the employee during the investiga- tive process (which the court described as "high-handed and vindictive"). Ultimately, the court reduced punitive damages to $75,000, an amount it believed appropri- ately punished the employer. What level of proof is necessary to justify termination? While it is always preferable to have absolute proof, that is not always possible. e good news for employers is absolute proof is not the standard. Except in the case of alleged criminal misconduct (where the standard is "beyond a reasonable doubt"), the standard of proof in civil courts and arbitrations is "the balance of probabilities." In other words, is it more likely than not the alleged events occurred. Where evidence is lacking, and the employer must assess the credibility of the witnesses to determine which are telling the truth, the employer should be able to justify its assessment. For instance, the complainant's version of events may be consistent with timekeeping records, while the accused employee's is not. Or the accused employee's account may be consistent throughout, whereas the complainant's account varied considerably. Bottom line: Issuing discipline in the absence of evidence is risky and not recommended. Instead, the employer should undertake an investigation to inquire into what happened. When in doubt ask yourself two questions: 1) Would discipline hold up to the scrutiny of a judge or arbitrator? 2) If not, what are the possible ramifications of an unfavourable decision financially and in the workplace generally? See Elgert v. Home Hardware Stores Ltd., 2011 CarswellAlta 1263 (Alta. C.A.). Natasha Zervoudakis is a lawyer with Sher- rard Kuzz LLP, a management-side employ- ment and labour law firm in Toronto. Nata- sha can be reached at (416) 603-0700 (Main), (416) 420-0738 (24 hours) or by visiting www. sherrardkuzz.com. « from ASK THE EXPERT on page 1 Absolute proof not the standard bulls—t and I want something done by Mon- day or I rope this f---ing place off, and no one I mean no one is going in." Watt used some more profanity and said "this place is going to hell." e supervisor told him again to calm down and said he would look into the situa- tion. e lights were fixed later that day. e day after that — Oct. 30 — Watt was undertaking a process that involved feeding a pot with ore and using a pole to bring the pot's temperature down. He saw a number of crews in the area, so he advised a supervisor. Soon after, he heard the supervisor on the radio advising crews to leave the building. Assuming the issue was resolved, he contin- ued his work. Soon after, Watt was inserting a pole in a pot when a blast of dust came from behind the pot and hit him on his side and in his protective face mask. He originally thought it was from a pot lining crew but it turned out to be a contractor. Watt contacted the supervisor and said he wanted to fill out a work refusal form and didn't want to work that day. When his own supervisor arrived, Watt told him not to bother speaking to the pot lining crew be- cause he was filling out a work refusal form. He used some more profanity as he spoke to them and said he had had enough and was going to call WorkSafeBC. e other supervisor told Watt his lan- guage and tone were unacceptable and it was the last time he would speak to him about it. A little while later, Watt apologized and ac- knowledged his language and conduct were unacceptable. Frustrated worker threatened to stop production for safety process e supervisor reported the situation to the area co-ordinator, who was concerned about Watt's comments the previous day that he would rope off the pot room and stop working, which could seriously harm production as once shut down, it would be difficult to restart. He called Watt into his office, along with a shop steward, and sus- pended Watt indefinitely. Watt was called in for an investigative meeting on Nov. 13 to discuss the incidents, and Watt acknowledged his conduct and threats to refuse work and call WorkSafeBC were inappropriate but borne out of frustra- tion. He was aware of the difficulties that would come with shutting down the pot lines. He again apologized and said he would improve his approach in the future. On Nov. 20, the company suspended Watt for 60 days for unacceptable use of safety processes and insubordinate language and tone to his supervisors. While the company acknowledged the suspension was a lot for a first offence, it considered Watt's deliberate and aggressive behaviour serious miscon- duct that was carried out over three days. Unifor grieved the suspension, arguing the suspension was too harsh for a long- term employee's first offence, particularly given Watt's legitimate safety concerns. Arbitrator Wayne Moore found Watt's "loud, profane and aggressive" conduct di- rected at his supervisors was "clearly insub- ordinate" and deserving of discipline, par- ticularly considering Watt continued with it over three days after having a chance to cool down." ough Watt apologized to his su- pervisor, he didn't do so until after the third incident and didn't apologize to anyone else. Arbitrator Moore also found Watt's insub- ordinate conduct was compounded by his threats to refuse work and call WorkSafeBC, which, though not necessarily personal to the supervisors, "squarely impacted on the supervisors' roles and obligations." ough no physical threat was made, the threat to halt production — upon which Watt had no intention to follow through — had potential serious consequences to the business, said Moore. "While I accept that unions and their representatives have an important role in asserting and protecting their members' legitimate interests in a safe workplace, the issue of safety is far too important to be un- dermined by what I consider to be the 'gam- ing' of safety processes," Moore said. "Al- though I also accept that (Watt's) conduct on these days was in no small part a product of frustration, it is within the context of the importance of safety that I consider his con- duct with respect to the (work refusal) to be serious)." Despite the seriousness of Watt's miscon- duct, arbitrator Moore placed significant importance on his eight years of service with a clean record. ough he understood the company's concerns about Watt's behaviour, Moore determined that a 20-day suspension would be sufficient to make Watt appreciate the seriousness of his misconduct and — with such a lengthy suspension on his record — to repeat it would put his job at risk. For more information see: • RIO Tinto Alcan Inc. Kitimat Works and Unifor, Local 2301 (Watt), Re, 2016 Car- swellBC 2570 (B.C. Arb.). « from WORKER'S on page 3 reat to shut down production had consequences

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