Hydro One worker fired for profane tirade reinstated

Worker acted insubordinately but was under stress and not at work
By Jeffrey R. Smith
|Canadian Employment Law Today|Last Updated: 05/14/2014

An Ontario employee’s profanity-laced tirade against a manager on the phone was cause for discipline but not dismissal, the Ontario Labour Relations Board has ruled.

Tyler Leudke was an electrician for Hydro One Networks, an electricity provider in Ontario. Hired in 2002, Leudke was laid off and rehired twice before voluntarily terminating his employment in 2006. He returned to employment with Hydro One again in 2007.

In April 2008, Leudke received a verbal warning from a senior manager, Greg Chaffey, for being argumentative with supervisors, failing to remain at work during regular hours, being late for work, and leaving without authorization. In November 2010, Chaffey demoted Leudke with a written warning for failing to report an accidental electrical contact incident. Chaffey further had to discipline Leudke with a 1.5-day suspension in March 2011 for using a personal cellphone during a training session, which was against company procedure.

In 2011, Leudke was granted a six-month parental leave after the birth of his second child. Leudke requested an extension to 12 months, which was also granted. His expected return date was June 26, 2012.

Additional leave requested

A week before Leudke was to come back to work, he contacted his foreman to ask if he could tack on his three weeks of vacation to the end of his leave. After receiving no response, Leudke contacted the next person up the ladder, a superintendent. The superintendent felt he needed to speak to the area construction manager — which was Chaffey — for such a long vacation request.

Leudke’s request was granted and his new return date was July 17, 2012. Since Leudke had been away from the workplace for so long and would be working for a new foreman, it was decided he should have to attend a few days of training to ensure he was up to date. This training had to be rescheduled after his additional time off was granted.

July 17 came and went, and Leudke didn’t return to work at Hydro One. Leudke contacted the superintendent and told him his wife was having medical issues and he needed to stay home to look after the children. Leudke indicated it was serious and he needed to take a medical leave. He also said he would quit his employment if necessary, but he needed to stay home. The superintendent told Leudke he should speak directly to Chaffey about the medical leave request. However, Leudke claimed the superintendent told him they would figure it out and get back to him and denied being told to get in touch with Chaffey.

One week later, Chaffey called Leudke to get some information for the medical leave request. Leudke said his phone was dying, so Chaffey asked Leudke to call him back. However, the call didn’t come.

Heated telephone conversation

On July 27, Chaffey called Leudke again. Chaffey once again explained he wanted to discuss the medical leave request, but Leudke cut him off and said “you know I have a sick wife” and “this is a nothing job.” According to Chaffey, Leudke followed up with a profane insult and said, “you’ve been out to get me.” Chaffey retorted that anything that happened in the past was his own fault, to which Luedke said, “you can stick your job up your ass.” Before hanging up, Leudke made another vulgar insult and said, “I’m going to come and get you.”

Leudke had a different version of the conversation. He testified that Chaffey said “only women take parental leave” and called Leudke a homophobic slur.

Hydro One terminated Leudke’s employment for swearing and threatening Chaffey, as well as a “lack of respect to your fellow workers who have followed the vacation protocol.” Leudke was also banned from any property owned or operated by Hydro One. The union grieved the dismissal, supporting Leudke’s contention that he didn’t threaten Chaffey and only swore at him in response to a homophobic slur.

The arbitrator found the stage was set for both Chaffey to be angry and Leudke to be irritated before the phone call. Once Leudke called to request the medical leave, the follow-up calls from Chaffey were unexpected and unwelcome since Leudke was under the impression the leave had been granted after his initial call.

However, the arbitrator found it unlikely Chaffey made the homophobic slur and acted condescending, without any evidence of similar conduct in the past. As a result, it was likely Leudke became angry during the call and used coarse language and threats.

The arbitrator found the request for three weeks vacation at the end of his leave did not provide just cause and was within Leudke’s right. This left only his conduct during the phone call.

Though Leudke said he was “going to come and get” Chaffey, this comment was made in anger and on the spur of the moment after receiving an unexpected and unwelcome phone call. Adding in the stress of his wife’s illness, Leudke’s comments should not reasonably be perceived as a threat, said the arbitrator, pointing out that Chaffey didn’t call the police and therefore didn’t perceive it thus.

The arbitrator found Leudke acted insubordinately and with “repeated, unjustified, profane verbal abuse,” though without a real threat and while under stress. This warranted discipline but not dismissal, said the arbitrator.

Hydro One was ordered to reinstate Leudke with a two-week unpaid suspension, but with no back pay from his date of termination. See Hydro One Inc. v. CUSW, 2014 CarswellOnt 4234 (Ont. Lab. Rel. Bd.).