Bad Behaviour 2.0, Part 1: Employees Getting Away With...

• Author: Bowal, Peter

We scoured the judicial and arbitral decisions and found ten more random instances of egregious employee behaviour that Canadian courts and arbitrators excused. Since the judge or arbitrator found that the employers had no legal basis to find these employees, employers were hit with damages for wrongful dismissal and court costs. The employer was successful, only in the first case below, in overturning the original decision on appeal.

In reading these cases, one asks, "what was that judge (or arbitrator) thinking?" One might also consider whether such forbearance of co-worker harassment will continue.

1. Bannister v General Motors of Canada Ltd.

   Twenty six witnesses, mostly women aged 18 to 23, testified over fourteen days to their own sexual harassment experiences with Bannister, the senior security officer on site. Although this conduct violated corporate policy, the trial judge found this was typical behaviour in the General Motors industrial plant. Concluding that Bannister was wrongfully terminated, the trial judge awarded him $119,510.41 plus prejudgment interest and costs. This decision was mercifully reversed by the Ontario Court of Appeal four years later in 1998.

2. Stone v Sybron Canada Ltd.

   Stone was employed with Sybron Canada for 16 years before his termination. Four women accused him of sexual harassment alleging he would grab their legs, poke their mid-sections, and run his fingers up their legs. All the women told him to stop. He did stop for a few shifts and then continued. He was also accused of drinking on the job. If he did not come to work drunk, he would be drunk by the end of the shift. He would put alcohol in his soft drink can and was too drunk by the end of his shift to perform his duties. In 2006, the judge found insufficient legal cause for the employer firing Stone and awarded him a notice period of 13 months, which was $43,353.31.

3. Soplet v Bank of Nova Scotia

   In 2005, an analyst with the Bank of Nova Scotia purchased marijuana during work hours at a colleague's workstation. For this, he was fired from his job. He admitted to purchasing the marijuana (an illegal act) and despite having annually signed the bank's Guidelines for Business Conduct, he deliberately breached said Guidelines. Still, he was awarded six months of wages in the amount of $36,300, plus 10% for lost benefits, and 4% interest.

4. Chandran v National Bank

   Virtually every subordinate employee complained about Chandran's "inappropriate...