Termination warranted for racial slur, threat

The grievor had short service and significant discipline. He left a note on a co-worker's car maligning a third employee and threatening him with violence. The arbitrator found the dispute was not a purely personal one. The grievor's mental state was perhaps fragile, but there was no medical evidence to support that claim.

A worker was fired after he left an offensive note on a colleague’s car in the company parking lot.

John Doe (J.D.) was employed at Canada Bread Company as a sanitation worker. J.D. had about two years’ service when he was fired on Sept. 30, 2010.

There was significant discipline on J.D.’s record.

J.D. had been suspended twice for leaving work early. He was also awarded a five-shift suspension for swearing at a co-worker. There was a termination on his record for sending disturbing emails to a supervisor. However, that termination was reduced to a two-week suspension and a conditional return to work under a Last Chance Agreement (LCA).

J.D. was fired again for swearing at a supervisor. That termination was also reduced to a two-week, “final suspension” and yet another LCA. J.D. was subject to a term in the final LCA, which specified that: “Any future workplace issues that would normally attract discipline will lead to your immediate termination.”

While at work on July 29, 2010, J.D. placed a note on a co-worker’s car.

The note expressed J.D.’s anguish about his feelings for the co-worker — who was a friend — and the fact that J.D.’s feelings were not reciprocated. J.D. was a mostly closeted gay man who suffered from depression and bouts of anxiety that were exacerbated by fears of homophobic harassment.

Homophobic slur

The note also contained a postscript that lashed out at a mutual friend of the two men. J.D. held the third man responsible for undermining his relationship with his friend. J.D. also believed that the other man had yelled a homophobic slur at him from a car.

The note referenced the drive-by incident and offered a challenge to the “half chink coward” to repeat the homophobic slur in person so that J.D. could “kick his fucking teeth in.”

Accompanied by a union steward, J.D. attended a meeting on Aug. 17 with a company representative. The meeting first addressed some complaints about harassment that J.D. had brought to the attention of his manager. J.D. was then confronted with the note.

J.D. acknowledged the note as his. J.D. wept. He expressed shame and regret for the slur and the threat. The next day, J.D. applied for medical leave.

J.D. was fired on Sept. 30, 2010. The termination letter said that in view of J.D.’s lengthy disciplinary record — including the LCA — the employer had no alternative but to terminate J.D.’s employment.

The union grieved.

Duty to inquire

The union said the employer had no jurisdiction to intervene in a personal, off-duty dispute between friends. Even in the event that the conduct could be linked to the workplace, it was properly a personal dispute that did not merit a disciplinary response by the employer or trigger the LCA, the union said.

Alternatively, the union acknowledged the legitimacy of the LCA but argued that the LCA was also subject to the duty of accommodation. In this case, the union said, the employer knew — or should have known — that J.D. was suffering from a mental illness. The union said the employer had a duty to inquire into the state of J.D.’s mental health and make a determination about whether or not there was a nexus between J.D.’s mental health and the alleged misconduct. The union charged that the employer failed to meet this duty.

The Arbitrator upheld the termination.

J.D.’s conduct was subject to discipline. Even if it occurred off-duty, J.D.’s conduct crossed the line identified in Millhaven Fibres that provides the test to determine whether or not employers may terminate employees for conduct away from work. In this case, J.D.’s actions would reasonably cause other employees to be reluctant to work with him, the Arbitrator said.

The Arbitrator also rejected the union’s argument that J.D. suffered from a disability that caused him to write and deliver the note.

The Arbitrator did not dispute that J.D. had likely suffered harassment at work and that he had made a number of verbal complaints to that effect to his supervisor. The Arbitrator accepted that J.D. was “deeply troubled,” subject to “pervasive fears and strong emotional responses to events” and that he was “impulsive.”

Insufficient evidence

However, the medical reports submitted by J.D. that referred to a “mood disorder and generalized anxiety” were based on J.D.’s self-reported assessments and were not medical diagnoses, the Arbitrator said.

“The difficulty for the Union’s case is that it was unable to provide any medical or other ‘expert’ evidence to support its position. In my view, based on the authorities which deal with mental illness, particularly those other than addictions, arbitrators will feel themselves incapable of concluding that a disability has caused misconduct without hearing cogent expert evidence to this effect and judging the sufficiency of that evidence.”

There was insufficient evidence to establish any link between J.D.’s alleged disorders and his misconduct, the Arbitrator said.

The Arbitrator allowed that there may be cases where a person’s singularly outrageous or other out-of-character acts could prompt some inquiry in order to determine whether or not a mental illness or disorder may have played a role in some particular misconduct but that was not the case here.

J.D. had a history of impulsive behaviour driven by anger, the Arbitrator said, but that fact by itself was not enough to establish that he suffered from a mental disability.

“The distinction between an employee who exhibits poor behaviours and an employee who is compelled by a disability to perform in a particular way is a distinction that must be resolved in the union’s favour only upon the presentation of evidence meeting the standard of probabilities,” the Arbitrator said.

The grievance was dismissed.

Reference: Canada Bread Company and Bakery, Confectionery, Tobacco Workers, and Grain Millers International Union, Local 468. John L. McConchie — Sole Arbitrator. Thérese Tremblay for the Union. Andrea Folster for the Employer. Dec. 22, 2012. 47 pp. 

Mark Rogers is a writer and editor who specializes in labour relations and occupational health and safety.

Latest stories