Antagonistic worker fired for behaviour, not harassment complaints

Worker couldn’t get along with colleagues, accusing them of malicious rumours and devious motives
By Jeffrey R. Smith
|Canadian Employment Law Today|Last Updated: 08/22/2018

An Ontario worker who couldn’t get along with his colleagues and lashed out at them was dismissed for inappropriate workplace conduct, not any harassment complaints he claimed to have made, the Ontario Labour Relations Board has ruled.

Amex Canada is a company handling American Express credit card business in Canada and is based in Toronto. In September 2016, Amex hired Jean-Paul Massissou to be a customer care professional (CCP) responsible for helping customers accessing Amex services and resolving customer issues and complaints. All Amex CCPs worked in an open office environment with no assigned seating in order to support a collaborative working environment.

Massissou’s orientation included computer module training on the company’s harassment and workplace violence policy as well as its values and code of conduct. The policy and code of conduct set out a reporting procedure where employees could report an incident to their supervisor, the human resources department, or the office of the ombudsman. Company records indicated Massissou completed the training module on Oct. 15, 2016, about one month after he started with Amex. The policy, values, and code of conduct were also posted on the home page of company computers.

Altercations with colleagues started early

During the 12-week training period, Massissou claimed a co-worker referred to him as a“cave-man” and called him a drunk in front of the team leader. He told the team leader, but the co-worker denied saying “cave-man” and said he frequently used the term “my man,” which Massissou likely misheard. Massissou responded that he wasn’t a homosexual and didn’t like being called “my man,” which led to a heated argument.

The team leader reported the incident to Amex’s employee relations specialist and told both of them to remain professional in the workplace and to let him know if they had any issues.

About one month later on Dec. 21, another team leader emailed her supervisor about another incident between Massissou and the same co-worker. Massissou had told the team leader his co-worker was talking about him behind his back and telling other CCPs that he was drunk at work. Massissou said he would confront the co-worker if he heard anything else. The team leader told Massissou that he should avoid a confrontation and inform her if it happened again.

The supervisor felt these situations were “workplace incidents” and the team leaders had dealt with them sufficiently.

On April 5, 2017, another Amex employee called security and a supervisor, accusing Massissou of “aggressively” bumping her in a hallway. The supervisor began an investigation with the assistance of the manager of Amex’s security services.

The supervisor interviewed the accuser, who mentioned another incident where Massissou had accused her of purposely listening in on a phone call that she had transferred to him but forgot to release. She had apologized at the time. She also discussed another occasion when she had mistakenly said “amigas” instead of the masculine “amigo” when saying goodbye to Massissou. Massissou had responded by saying he wasn’t gay, accused her of talking behind his back, and said “if she was not a girl” he would have gone “fist to fist” with her.

Massissou denied bumping into the accuser, though he admitted to being angry about the phone call and “amiga” comment.

Massissou felt he had been unprepared for the investigative interview, so afterwards he sent an email to the team leaders saying his accuser “plays the victim card but she is not as innocent as she have you think.” He said the co-worker had provoked him often both “verbally and physically” and listed several incidents. He denied saying he would go “fist to fist” with the accuser, calling her “delusional” and saying all his co-workers were “desperately trying to paint a negative image of me so HR can terminate my job at Amex.” Massissou followed up with an email to the investigating team leader about the “cave-man” comments of his co-worker, insisting they were grounds for termination and “I trust that you will take action immediately and I want an update afterwards.”

The investigators found the bumping allegation couldn’t be substantiated but they were concerned about Massisou’s response, his unprofessional conduct, and his lack of any responsibility for the problems with his colleagues. They gave Massissou a warning letter that outlined the expectations for respectful conduct in accordance with company policies. The letter was labelled a “first and final warning” and future violations of the policies would “result in your immediate termination of employment.”

After the warning letter was delivered to Massissou, he continued to deny responsibility for his interactions with his colleagues and was mostly worried about the impact of the warning letter on his career. The supervisor reiterated that he must be courteous and professional at work and if he had an issue with anyone to contact a team leader or HR.

Worker’s conspiracy theory

On May 23, 2017 — a little more than three weeks after the warning letter — Massissou sent an email to the supervisor, his own team leader and several other Amex employees. The email stated that there were defamatory comments about him circulating and he “will denounce and simultaneously eradicate all of the various false rumours about me.” He went on to discuss at length a false rumour his team leader allegedly had spread about him, then said he “will not tolerate being labelled as a homosexual.” He also accused his team leader of trying to get him to quit “at least three times” and making “indirect insults” towards him. The letter concluded with the statement: “I am not afraid of the light, I am constantly defending my character and while you hide and gossip about me, I expose the truth to your face to face and I always prevail.”

The supervisor called Massisou to tell him the open email was aggressive and against the harassment policy, code of conduct, and company values. However, Massissou angrily and repeatedly interrupted her, maintaining he had the right to defend his reputation.

Following the call, the supervisor met with other management and they determined Massisou had violated Amex’s policies of respectful communication and damaged the employment relationship beyond repair. Amex terminated Massissou’s employment and offered a severance package.

Massissou filed a complaint saying Amex had unlawfully terminated him in reprisal for complaining about his treatment by colleagues, contrary to the Ontario Occupational Health and Safety Act (OHSA).

The board found that after Massissou’s altercation with his co-worker over the comments about being drunk and “cave-man,” Amex took action when the team leaders reported it and advised Massissou to come to them if there were any issues. Amex determined the comments weren’t harassment and considered the matter resolved.

The board also found that Massissou’s emails prompting and following the warning letter were not attempts to invoke his OHSA rights and complain about harassment. The email following the interview was “an accusatory and critical response” to the bumping accusation and implied a malicious conspiracy to get him fired. There was no implication that he was complaining of harassment and Massissou made it clear he could deal with his colleague on his own terms, said the board.

The board also found that the warning letter was solely for Massissou’s unprofessional conduct in the workplace. Massissou showed no concern that he was being harassed and was only concerned about the effect the letter would have on his career. He also indicated he didn’t accept the directions in the letter, said the board.

The second widely-distributed and defiant email came after the written warning and demonstrated a continued failure to meet Amex’s standards of conduct. By ignoring the warning, Massissou provided just cause to terminate his employment, said the board.

“The fact that Mr. Massissou would send the email after the employer warned him of professional communication in the workplace, demonstrates that he was willing to hear only that which he wished to hear and had a propensity to disregard any information or directive that did not support his position or failed to endorse his approach to the analysis of the situation,” the board said.

The board determined that Amex dismissed Massissou for reasons other than an exercise of OHSA rights. In fact, there was no evidence Massissou made any actual harassment complaint that could be considered an exercise of such rights, said the board.

For more information see:

Massissou v. Amex Canada Inc., 2018 CarswellOnt 8560 (Ont. Lab. Rel. Bd.).

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