Canadian Employment Law Today

May 23, 2018

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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©2018 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. We acknowledge the financial support of the Government of Canada, through the Publications Assistance Program (PAP), toward our mailing costs. GST #897176350 Published biweekly 22 times a year Subscription rate: $308 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: customersupport. Website: Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Media Solutions, Canada: Karen Lorimer Publisher/Editor in Chief: Todd Humber Editor: Jeffrey R. Smith E-mail: Sales Manager: Paul Burton Email: Phone: (416) 649-9928 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 YOU MAKE THE CALL Was the suspension warranted? OR Was the suspension unfair? Lunchroom disagreement eats away at workers THIS INSTALMENT of You Make the Call features a worker who was suspended after an altercation with co-workers over lunchroom noise. Ut Nguyen worked for Mobile Climate Control (MCC), a Concord, Ont.-based manufacturer of heating, cooling, ventila- tion, air conditioning, and refrigeration systems for transit vehicles, and was hired in 2010 with no discipline on her record since then. MCC had a workplace violence and harassment policy that was provided to employees and posted in the plant. MCC's employees had assigned lunch breaks that were staggered because the lunchroom had limited capacity. In April 2013, the supervisor held a meeting with Nguyen and a few other employees to re- fresh their start, break, and quitting times, as well as their proper lunchtime slot so avoid crowding in the lunchroom — there had been some concern of them interrupting the lunchtime of the earlier lunch period. On Aug. 10, 2016, employees on the 12 p.m. to 12:30 p.m. slot were eating lunch when Nguyen and a few other employees from the next lunch period came into the room a few minutes after 12 p.m. Accord- ing to a lead hand eating lunch, Caovan Ly, the employees who came in "started eating, using the microwave, talking and laughing." Since it wasn't normal practice for employ- ees to come to the lunchroom before sched- uled and he was bothered by how noisy they were, Ly told the supervisor about it. e supervisor advised Nguyen and other employees not to go to the lunchroom early and heat up their foods. Nguyen asked if Ly had told him about the incident, but the su- pervisor said no in order to keep them clear of each other. e next day, when Ly arrived at work he went to the lunchroom to put his lunch in the refrigerator. He claimed that when he opened the door, Nguyen came up to him and started yelling in Vietnamese, "You al- ways give a hard time to Vietnamese people, not Indian." Ly and Nguyen were both of Vietnamese descent and had no interaction at work other than occasionally saying hello. Ly reported the incident to the supervisor and an HR representative, saying Nguyen had said "kick ass of Indian people and give Vietnamese people a hard time." English wasn't his fi rst language, and he had meant "kiss," not "kick." e supervisor noted Ly seemed "very upset and kind of scared." Following the meeting, the supervisor called Nguyen to his offi ce to discuss the al- tercation. Nguyen denied Ly's accusations and became aggressive, saying "Who told you?" e supervisor didn't tell her who made the complaint, but told her it was in the lunchroom at the beginning of the shift. Ac- cording to the supervisor, Nguyen confront- ed him and came towards him "like a person who is ready to fi ght." He preferred Ly's ver- sion of events as he knew Nguyen was "a loud person" and decided to suspend her for fi ve days and give her a discipline report. Nguyen grieved her suspension, calling it unjust as she was unfairly singled out from other employees who went to the lunch- room early to warm their food as other people did it. She acknowledged that if someone used the words she was accused of using, she would fi nd them off ensive, but denied saying them, acting aggressively in the meeting with the supervisor, or receiv- ing training about lunch break times. She also said the only discrimination and ha- rassment training she received was "some people" who spoke to employees for a short session a few years earlier. IF YOU SAID the suspension was unfair, you're right. e arbitrator noted that while there were some inconsistencies in Ly's ac- count of what Nguyen said to him on the morning of Aug. 11, 2016, they were con- sistent in nature. e arbitrator also found Nguyen was consistent in her account and believed her behaviour didn't deserve a suspension. However, there was also no basis in either account for a motive for Ly to falsely accuse Nguyen of making racist remarks. ey had little interaction at work and didn't have any history. erefore, it was more likely that Nguyen made the re- marks to Ly in the lunchroom about his bias against Vietnamese people at work and in favour of Indian people, said the arbitrator. e arbitrator found that MCC's investi- gation into the incident was fl awed, in that it didn't consult any potential witnesses and didn't factor in Nguyen's clean disciplinary re- cord. ere were vague references to previous complaints about her but nothing concrete was presented to Nguyen or referred to in the discipline report. In addition, Nguyen had no opportunity to take responsibility for her ac- tions or defend herself, said the arbitrator. e arbitrator also found there was uncer- tainty and no real evidence of the extent of training Nguyen and her co-workers had re- ceived on the company's workplace violence and harassment policy, so Nguyen's claim of limited training was believable. e arbitrator determined that a fi ve-day suspension was unwarranted due to MCC's failure to properly investigate the incident, a lack of proper training on the company's workplace violence and harassment policy, and the failure of MCC to follow progressive discipline. MCC was ordered to wipe the sus- pension from Nguyen's record, substitute a written warning, and compensate her for any lost wages from her suspension. For more information see: • Mobile Climate Control Inc. and UFCW, Local 175 (Nguyen), Re, 2018 CarswellOnt 136 (Ont. Arb.).

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