'He tried to set up a scenario where he was the victim of an employer conspiracy'
A British Columbia arbitrator has upheld the firing of a worker for intimidating an HR representative and sending aggressive emails to management.
Although the worker had no previous discipline, he made it difficult for the employer or the arbitrator to find a reason to mete out lesser discipline, says Michael Penner, a labour lawyer at Kent Employment Law in Victoria.
“An ounce of contrition likely could have saved his job at some point but, unfortunately, at every juncture [the worker] doubled down,” says Penner. “And he tried to set up a scenario where he was the victim of an employer conspiracy, failed miserably at establishing that, and as a result the hammer came down.”
The worker was a gas turbine engine mechanic at MTU Maintenance Canada, a provider of commercial engine maintenance services based in Delta, B.C. He was initially hired in 2011 and had no discipline on his record.
In September 2019, the worker contacted MTU’s director of HR requesting a look at his personal file. After reviewing the file, he said that an apology letter that had been part of a settlement agreement was missing.
The HR director replied that the settlement agreement had a confidentiality clause restricting him and anyone else from revealing the contents. She asked him to email her about it because the meeting had included a shop steward who had not been part of the settlement agreement.
Dispute with HR
The worker didn’t believe that there had been a confidentiality clause, but he agreed and followed up by email. The HR director responded that the apology letter was “an extremely private matter” and it wasn’t kept in the personal file.
The HR director also told the worker that he had breached the confidentiality agreement by disclosing information about it to the shop steward at the meeting, leading to concerns over his own ability as a shop steward to handle private data. She added that the worker was “extremely lucky” that another person involved in the settlement wasn’t an MTU employee.
Read more: A union executive’s tirade and angry emails directed at an HR advisor was bullying behaviour deserving of a suspension.
The worker was upset at the email and said he felt attacked. He also felt the comment about being lucky was a threat to his safety and property.
The worker emailed the HR director on Sept. 30, saying her “personal negative comments” weren’t appropriate for her position and he wouldn’t stand for “demeaning behaviour” from her. He demanded a meeting with her and his shop steward.
The HR director sent an email apology, saying that she didn’t mean for her comment to come off as harsh. She agreed to a private and confidential meeting to resolve the matter.
In the days before the meeting, the worker sent emails to management, accusing HR of underhanded action that “personally affected and traumatized” him. He also alleged that MTU had treated him with systemic discrimination.
The meeting was held on Oct. 25 in the HR director’s office. According to the HR director, the worker challenged her, leaned across her desk, and started yelling into her face. When she started talking, he raised his hand and moved it towards her face. Every time she tried to talk, the worker cut her off and spoke over her, calling her a liar twice.
After the meeting, the HR director sat in her office crying and shaking and another employee came to her office to find out what had happened. She filed a complaint under MTU’s respectful workplace policy and emailed the other shop steward who had been in the meeting to say he needed to ensure that the worker’s anger was controlled.
MTU hired an independent investigator to look into the matter.
The worker denied acting inappropriately, saying that they had a “heated debate at a very low level” and he only leaned forward in his chair because he was uncomfortable due to a medical condition. He acknowledged accusing the HR director of being evasive, but said he didn’t threaten her.
The other shop steward at the meeting corroborated the HR director’s version of the meeting, noting that the worker’s voice was loud enough for people in the next office to hear.
Investigation found bullying, harassment
The investigator determined that the worker’s conduct constituted bullying and harassment. The worker questioned the impartiality of the investigator and disagreed with her findings, calling the investigative report “a grand work of fictional slander to hinder my innocence to suppress the truth.”
MTU’s CEO reviewed the investigative report and decided to terminate the worker for aggressive, violent, and intimidating behaviour that breached company policies on harassment and a respectful workplace.
It was wise for MTU to bring in an independent investigator says Penner, who notes that it was a harassment investigation stemming from the HR director’s complaint, not a misconduct investigation.
“Rather than having an in-house investigator, they brought in a complete professional, so there's nothing in this that would point to anything unreasonable on the part of the employer,” he says. “And the fact that they had follow-up meetings, they invited the [worker] to respond to the investigation, they did their due diligence, and gave him every chance to apologize his way out of out of the problem.”
Worker claimed conspiracy
The worker grieved the termination, alleging that there was a conspiracy to get him fired. He said that if he was reinstated, he would “continue his crusade to reveal the toxicity of the workplace and to hold those responsible accountable.” The union conceded that there was cause for discipline, but dismissal was excessive because the meeting was an isolated incident that arose out of the worker’s frustration.
The arbitrator found that the worker’s conduct in the meeting was inappropriate and deserving of discipline. Based on the accounts of the HR director and the union steward, there was no doubt that the worker became angry, raised his voice, and put his hand in the HR director’s face. The HR director was concerned about her safety, which was supported by her email to the shop steward afterward and reporting of the incident, said the arbitrator.
The arbitrator also found that the worker tried to downplay his behaviour and his account was “evasive and self-serving.” His refusal to acknowledge that his behaviour and emails were increasingly aggressive hurt his credibility.
The arbitrator noted that MTU had a statutory responsibility to protect employees from disrespectful and bullying behaviour in the workplace and the worker displayed this type of behaviour. While dismissal of an employee for such behaviour isn’t always necessary, there must be an indication that the employee will change their behaviour for the employment relationship to continue, the arbitrator added.
“We don't know if [MTU] considered any disciplinary outcome other than termination, but I think [the arbitrator] was quite clear that it wouldn't have mattered because clearly [the worker’s] pattern of behaviour and his unrepentant view of his own conduct meant that progressive discipline would not have been effective,” says Penner.
Worker doubled down on behaviour
The worker did not acknowledge his misconduct and in fact he “double-downed” on it, sending emails to management accusing MTU of systemic discrimination and a toxic work environment while saying that the HR advisor was trying to slander him, the arbitrator said. In addition, the worker challenged the investigation findings and claimed that the independent investigator was biased.
It’s a workplace harassment issue that blossomed into an insubordination problem, says Penner, as the worker could have apologized after the meeting but instead continued a campaign of emails to his superiors that became more provocative.
“[The worker] could have backpedaled from that meeting — and, frankly, he should have known better as a shop steward, as he would have known the Code of Conduct and that part of his job would be to deal with difficult circumstances,” says Penner. “This wasn't a situation where he chose to be mouthy to the wrong person at the wrong time — there's an element of deliberation to [his conduct].”
Read more: An Ontario nurse who subtly bullied co-workers was wrongfully dismissed, but reinstatement wasn't possible due the damage done to the team-oriented workplace.
The arbitrator determined that the worker’s actions fundamentally and irreparably damaged the employment relationship and his refusal to accept responsibility made dismissal an appropriate level of discipline.
Even though it seemed that the worker dug himself a hole with his behaviour and accusations, MTU helped itself by using an independent third-party investigator to avoid possible complications with the investigation, says Penner.
“Had the investigator not been completely arm's-length, then this would have escalated even far beyond what it actually did,” he says. “If anything, this is a positive reminder to employers that there is value in following procedural fairness and due process even in the face of a malcontent employee.”
“The investigation buttressed the employer’s decision, as opposed to doing it internally and relying on it where the perception of bias is much more of a live issue,” says Penner. “There's a lesson for employers that there is an intrinsic value to having a professional, third-party investigator — particularly with allegations of harassment — because it offers a layer of protection from that allegation of bias.”
See MTU Maintenance Canada Ltd. and IAMAW, Transportation District Lodge 140 (Ismail), Re, 2022 CarswellBC 1844.