Arbitrator rules profanity during telephone call with manager insufficient to constitute ‘just cause’ for dismissal

July 15, 2014 Simon Heath, BA, MIR, LLB, Heath Law Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Notice, Damages and Settlements, Payroll, Union Relations

Vice-Chair Ian Anderson of the Ontario Labour Relations Board recently ruled in Canadian Union of Skilled Workers v. Hydro One Inc., 2014 CanLII 15069 (ON LRB), a construction industry grievance that the employee’s use of profanity during a telephone call with his manager did not constitute conduct sufficient to justify a dismissal for cause. In doing so, the Vice Chair distinguished the present case from those cases where employees had clearly used profane language and also made “threats” against their managers or coworkers where dismissals had been upheld. Vice Chair Anderson concluded the Grievor did not make any threats and had only used profanity. Consequently, based on the Grievor’s disciplinary record, Vice-Chair Anderson rescinded the termination and substituted a two week suspension to be followed by reinstatement.

In this case, the Grievor who had some discipline on his record over the course of his 10 years of service had originally taken a 6 month Parental Leave from the Company. This leave was later extended to 12 months. The Grievor then sought to add three weeks of vacation before he was to return of July 17, 2012. However, the Grievor did not return and later called management to advise them that his wife was sick and he could not return because he had to take care of his kids and he requested a medical leave from the workplace. The Grievor was advised to give a senior manager, Mr. Chaffey, a call with respect to his request. The Grievor never called Mr. Chaffey so Mr. Chaffey called the Grievor on July 27, 2012.

The issue under dispute arose during the two different recollections of the telephone call that took place on July 27. The Company ultimately terminated the Grievor for cause on the basis he made threats to Mr. Chaffey and he had used excessive profanity. The Union alleged no threats were made and termination was to severe a penalty.

At the grievance, Mr. Chaffey testified that he asked the Grievor about the request for a medical leave and was immediately cut off. The Grievor then went on to say “You know I have a sick wife.” The Grievor continued with: “this is a nothing job”; “you are a fucking asshole”; “you don’t like me”; and “you’ve been out to get me”. Mr. Chaffey responded with words to the effect: “Anything that has happened to you, Tyler, in the past with respect to our work history is things you’ve brought on yourself, not something that I’ve brought on you”. The Grievor responded: “you can stick your job up your ass”; and “you are a fuck face and I’m going to come and get you”. There was then a silence of a few seconds following which the Grievor hung up.

The Grievor testified that Mr. Chaffey had made homophobic remarks about him taking a Parental Leave and this is what had caused him to swear. The Grievor testified that Mr. Chaffy said, “Listen Tyler, only women take parental leave. I don’t have time for faggots like you. I’ve already fired your faggot friend Carl and now I am firing you.” The Grievor was taken aback and responded: “Who the fuck do you think you are?”; “You can’t talk to me like that.”; “What did I ever do to you?”; “Why do you hate me so much?” Mr. Chaffey responded in a “proud tone”: “It’s not that I hate you. It’s your behaviour that I hate.” The Grievor responded with something along the lines of “what the fuck are you talking about?”

Vice Chair Anderson reviewed these two different views of the July 27 conversation and the rest of the evidence and made the following conclusions:

• There were no witnesses so credibility was key.
• He concluded that the Grievor had not made a threat against Mr. Chaffey which distinguished the case from others where threats had been made.
• He concluded that the Grievor had subjected Mr. Chaffey to “repeated, unjustified, profane verbal abuse”.
• However, the profanity was not sufficient to justify a just cause termination because the comments were not premeditated but arose because the Grievor was stressed about his sick wife.
• The termination was substituted with a two week suspension and reinstatement.

This case illustrates that arbitrators will review the factual backdrop of cases where employees use profanity and make threats against managers in order to ensure that a proper disciplinary penalty is imposed. The mere use of profanity may not be enough to justify a termination for cause.

Canadian Union of Skilled Workers v. Hydro One Inc., construction industry grievance, disciplinary record, discipline, dismissal for cause, employee’s use of profanity, employment law, grievance, Labour Law, management, medical leave from the workplace, Ontario Labour Relations Board, parental leave, profane language, proper disciplinary penalty, reinstatement, suspension, termination, termination for cause, terminations, threats against their managers or coworkers, union

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