Worker accused of incendiary actions

Employee accused of making bomb threat prevented from going to work by restraining order
|Canadian Employment Law Today|Last Updated: 10/17/2011

This instalment of You Make the Call features an employee who demanded back pay after being prevented from going to work due to a court order.

The employee, Mr. Turner, worked for Ontario Engineered Suspensions, Ltd. (OES) at its plant in Blenheim, Ont. In December 2005, OES and its union were in a dispute over the potential closing of the plant and the resulting layoffs. The union refused to accept any concessions and OES posted a notice on Dec. 16, 2005, that the plant would be closing. Turner was informed he would be laid off on April 28, 2006.

On Dec. 19, 2005, around 8:30 pm, a bomb threat was telephoned in to the plant. The caller said, “There’s a bomb in the building,” and hung up. The police investigated and they asked the employee who took the call, one of Turner’s supervisors, if he recognized the voice. The supervisor said he did and when the police asked him who it was, he named Turner.

The police interviewed Turner and he was arrested and charged with two offences under the

Criminal Code

. On Dec. 20, 2005, he was released from custody on a recognizance order with conditions he stay at least 50 metres from the OES plant and have no direct contact with management or administrative personnel at the plant.

When OES learned of the restrictions against Turner, management sent him a letter stating they would meet with him once the restrictions were lifted and he should advise them when that happened. At that time they would hear his explanation and determine what action to take. The company didn’t carry out any investigation of the incident and felt it couldn’t do anything to get Turner back to work as long as the court-ordered restrictions were in place.

On May 11, 2006, the criminal charges against Turner were quashed. Turner met with management and he returned to work on May 25. His layoff date was pushed back to July 21, 2006.

Turner wasn’t happy with how long he’d been off work and claimed OES played a role in his arrest. His supervisor identified him as committing a serious crime and the resulting restrictions preventing him from coming to work had effectively been an “indefinite suspension” which violated the collective agreement.

OES said it had nothing to do with the charges. The supervisor hadn’t volunteered Turner as the voice on the phone and only answered police questions about the caller’s identity honestly. It argued the decisions to lay charges and restrict him from work were made by the police and the court, not OES.

You Make the Call

Did the employer effectively suspend Turner by simply waiting to see what the outcome of the case would be?
Was the employer free of any ­liability for Turner’s employment until the resolution of the case?

If you said the employer was free of liability, you’re right.

The arbitrator found OES didn’t take any disciplinary action against him at any time. The arbitrator said in cases of liability for loss of pay the employer specifically decides to remove the employee from the workplace by suspension. In this case, it wasn’t the employer’s decision but that of the police and the court. OES’s involvement was limited to reporting the bomb threat and answering police questions, which could not be considered bad faith or setting him up to be charged.

The arbitrator ruled OES didn’t violate the collective agreement nor was it liable for Turner’s loss of pay while subject to the restraining order.

“While (Turner) may well be justified in feeling that he has been the victim of unfair treatment by criminal justice system officials, I can find no basis for holding the employer responsible for that treatment,” the arbitrator said.

For more information see:

U.A.W., Local 251 v. Ontario Engineered Suspensions Ltd.

, 2006 CarswellOnt 8795 (Ont. Arb. Bd.).

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