'There are lines an employee ought never to be able to cross': lawyer
Canada Post was justified in firing a worker for aggressive and insubordinate behaviour that followed multiple suspensions for similar misconduct, a federal arbitrator has ruled.
“It's difficult for an employer to justify with-cause termination, as the burden of proof is always on the employer to demonstrate that the employee would not likely have improved with more progressive discipline,” says Joseph Oppenheim, a labour and employment lawyer at Carbert Waite in Calgary.
“But this case demonstrates that there are lines an employee ought never to be able to cross [with workplace behaviour].”
The worker was a mail carrier for Canada Post in Toronto. He had concerns about the length of time it took to cover his mail route, particularly since he believed others were being allowed to start early while he was not. However, there was a policy that employees were not to start work early.
The worker also felt that there were disruptions that negatively impacted his customers, so Canada Post and the union investigated. They spoke to some customers and determined that the worker usually finished his route well before his finishing time.
On May 10, 2022, the worker asked the superintendent if he had any more stories to write. When the superintendent asked him what he meant, the worker replied in an aggressive tone, “You are a f---king piece of sh--.” The superintendent told him not to talk to him like that, and the worker said he would talk to him however he wanted before storming off.
Insubordinate behaviour at Canada Post
Canada Post conducted an investigative interview and the worker said that he had also called the superintendent “Dr. Seuss and Walt Disney.” The worker also claimed that the superintendent had “provocatively smirked” at him, but the superintendent said that he had been wearing a mask. Canada Post determined that the worker’s behaviour was harassment and suspended him for three days.
On July 11, the worker arrived at work 20 minutes early. The supervisor told him to leave and start at his normal start time, but the worker started yelling profanities and accused the supervisor of letting the next shift start early. The supervisor told him to lower his voice and stop swearing.
The acting superintendent walked by and the worker shouted at him that the supervisor and a union representative had gone behind his back to see his customers. The acting supervisor told him that wasn’t correct and to lower his voice. However, the worker continued to act aggressively and threatening.
When the worker returned at the start of his shift, he resumed swearing and shouting. Other employees asked him to stop and a supervisor told him to be quiet. The worker told the supervisor - who wore a hearing aid - “If it’s too loud, turn it down.” They approached each other and a shop steward had to step between them.
On July 14, the worker had an altercation with a colleague. They later met outside and the worker told the colleague that “I don’t mind going to prison for this. Don’t worry, I love you.” The colleague reported the incident and Canada Post suspended the worker for two days for this and the July 11 incident.
Threatening behaviour towards superiors
On Oct. 13, the superintendent saw the worker working 30 minutes before his start time. She asked him to leave, but the worker refused and told her to do her “f---king job.” He continued to be “aggressive, loud, abrupt and threatening.” The manager also asked the worker to leave, to which the worker replied that he should consult the previous manager and learn how to do his job.
The manager became exasperated and placed his hands on the worker’s shoulders, leading to the worker leaving. Canada Post suspended the worker for five days following this incident.
On Nov. 7, a supervisor observed the worker not wearing a safety vest, although the worker said that he had just removed it in order take off his jacket. A short time later, the worker approached the supervisor and yelled at him that he wanted to “pick on everything” and “It’s not safe here, it’s going to get a lot worse and it’s going to get a lot worse for you.”
Another supervisor spoke to him and the worker shouted profanities and said that he lied, he ruined his Christmas, and it was harassment. The supervisor walked away and the worker followed him, continuing to yell profanities. They went to a boardroom with a union representative and the manager, where the worker responded aggressively and referred to the manager putting his hands on him. The worker then said “I am done, have a nice life” and left the building.
Termination of employment
Canada Post discharged the worker for “a pattern of behaviour you have not corrected to date.” The union grieved the discharge and the suspensions, submitting an April 2021 psychiatrist’s report diagnosing the worker with “adjustment disorder with mild anxiety” and arguing that the worker’s behaviour was due to a medical disability. Canada Post submitted a psychiatrist’s report from March 2022 stating that the worker didn’t meet criteria for any DSM-5 psychiatric diagnoses and was fit to return to full-time work.
The arbitrator noted that “civility and respect are necessary principles underlying the proper function of the workplace” and the jurisprudence established that employees should pursue their disputes through the grievance procedure, not “disorderly, disruptive conduct.”
As for the medical evidence, the arbitrator found that it didn’t connect the worker’s diagnosis to his workplace conduct in 2022, noting that “a medical disability and inappropriate workplace conduct may exist contemporaneously on parallel tracks,” but without a connection established it didn’t explain the behaviour.
The arbitrator found that the worker’s behaviour on May 10, 2022, was harassing or vexatious behaviour that constituted workplace harassment justifying a three-day suspension.
The arbitrator also found that the worker’s conduct towards the supervisor on July 11 was “belligerent, disruptive and insubordinate.” If the worker had an issue with anyone speaking to his customers, he should have complained through the proper channels rather than disrupting the workplace, said the arbitrator.
Suggestion of workplace violence
The worker’s suspension for his July 14 comment to the colleague was also appropriate, as the worker suggested that he might perform an act of violence for which he could receive a prison term, the arbitrator said.
As for the worker’s Oct. 13 behaviour towards the superintendent and the manager, it was also disruptive and insubordinate, said the arbitrator. However, the manager’s placing of his hands on the worker’s shoulders was inappropriate physical contact, the arbitrator said in reducing the worker’s suspension from five to two days for this incident.
By the time of the Nov. 7 incident, the worker had “an overwhelming pattern of aggressive and disruptive conduct” that was “insubordinate, harassing, and lacking in civility.” When he was told to wear a safety vest, he once again acted aggressively, “lacking even a modicum of civility,” the arbitrator said.
Canada Post probably shouldn’t have let the worker’s behaviour go on for so long, according to Oppenheim.
“[The worker’s] aggression was repeated over time and, arguably, management could have taken the position that it had just cause after the first incident, where the worker was swearing at the supervisors and becoming so aggressive that it went beyond the pale,” he says. “Sometimes an employer doesn't have to be progressive in their discipline when the conduct is so inappropriate and so violent that termination with cause can be justified, even after one occurrence.”
“In certain circumstances, management doesn’t have to tolerate repeated incidents of that kind of aggression and violence,” he adds.
No remorse for conduct, attitude
The arbitrator determined that the worker’s “overall pattern of conduct and attitude” showed that the worker “lacked any introspection that his own conduct put him in disciplinary jeopardy” and showed no remorse. Corrective action seemed to have no impact on the worker, so discharge was appropriate, said the arbitrator.
“The arbitrator wrote quite accurately about the fundamental principles that underlie the proper function of the workplace - there has to be civility and respect,” says Oppenheim. “Patience dealing with insubordination is one thing, but where the employee goes so far over the line and starts swearing at management in front of others, I would argue that that is a fundamental, irreparable breach of the employment relationship that, in most cases absent any special circumstances, would justify dismissal.”
There are also workplace safety concerns if there’s a potentially violent employee who has demonstrated a propensity for aggressive behaviour, says Oppenheim.
“Arguably, an employer has the obligation to remove that employee from the workplace if he’s a danger to other employees,” he says. “This is all hypothetical, but I can imagine a case where, if the employer failed to deal with such an employee by removing him from the workplace, a complaint being made and the employer being held liable for failing to maintain a safe workplace.”
See CUPW and Canada Post Corp. (Tommaso), Re, 2024 CarswellNat 800.
