Worker caught on tape

Workers harassed employee who they suspected got co-worker fired for theft

Lying to an arbitrator is always a bad idea, as a food worker in Wheatley, Ont., found out. Nilton Marques was fired from his job at Omstead Foods Ltd. for harassment on Feb. 21, 2005. Marques had written “U SUCKY DINK” on the wall in the lunchroom next to where Joe Resendes, a co-worker, normally sits. The act was caught on videotape.

There was a history of harassment at Omstead towards Resendes. A worker had been fired for theft, and some of the employees fingered Resendes as the one who had tipped management off. Three times his truck was scratched in the parking lot. In May 2004 a worker was suspended for writing “You’re a backyard rat” on the wall near where Resendes sat.

A number of other messages were also written. The harassment bothered Resendes greatly and he became edgy, moody and had problems doing his job and it kept him awake at night.

In January 2005 a worker was fired for repeated comments he scrawled on the wall. It was shortly after that event that Marques added his graffiti and was fired. Despite being caught on tape, he initially denied doing it. Then, during arbitration, he said that he had actually written something else and that it had been changed by somebody.

Despite the worker’s clean disciplinary record and the fact he had been with the company since 1991, the arbitrator upheld the dismissal. Although it was a single act, it had been made clear to employees by management and the union that such acts of harassment were completely unacceptable. The arbitrator was particularly troubled by the perjury.

“For me to ignore perjury would be to undermine the arbitration process and deliver exactly the wrong message in the workplace,” the arbitrator said.

For more information see:

Omstead Foods Ltd. v. U.F.C.W., Local 459, 2005 CarswellOnt 8419 (Ont. Arb. Bd.).

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