An employment relationship beyond repair?

You Make the Call
|Canadian Employment Law Today|Last Updated: 06/16/2019

 This edition of You Make the Call features a mechanic who was fired for making an explicit gesture behind a customer’s back.

Paolo Cuconato, 49, was a senior automotive mechanic for Parker Auto Care, an auto repair shop in Ottawa. He began his employment with Parker Auto around 1991 and had no discipline or warnings on his record over the next 25 years. The company had no written disciplinary policies or training for its employees on workplace harassment and violence.

On Aug. 23, 2016, Cuconato made a sexually explicit gesture while a female customer was in the shop. The customer’s back was turned so she didn’t see the gesture, nor did she complain about it. However, a co-worker saw the gesture and, after the customer left, reported it to the manager.

When the manager accused Cuconato of making the gesture behind the customer’s back, Cuconato initially denied it because he wasn’t sure to what the manager was referring. However, the manager showed him a security video he had recorded on his cellphone of Cuconato making a gesture. The video was of poor quality and Cuconato argued the gesture wasn’t sexual in nature but instead it was intended to be a “saluting” gesture. However, the manager told him to immediately “go home and think about what you want to do.”

The manager also said if Cuconato refused to acknowledge making a sexually explicit gesture, the mechanic would have to either resign or be fired — and if Cuconato chose the former, the manager wouldn’t tell Cuconato’s wife about the incident.

The next day, Cuconato arrived at the shop and informed the manager he refused to resign. Parker Auto terminated his employment for making the gesture near a customer and breaching the duty of faithfulness and honesty by refusing to acknowledge his misconduct. Cuconato later acknowledged that the gesture he made was, in fact, sexual in nature.

Was dismissal inappropriate?

OR

Did the employee deserve to be fired?

IF YOU SAID dismissal was inappropriate, you’re right. The court found that while the gesture itself may not have been intended by Cuconato to be dishonest, his initial denial about making the gesture and then disputing that it was sexual in nature showed a certain level of dishonesty — especially after Cuconato eventually acknowledged it was sexual.

However, it wasn’t appropriate to characterize Cuconato’s denial as persistent, as he claimed he initially denied it because he wasn’t sure what the manager was talking about. Then, when they viewed the security video, it wasn’t clear enough to make out the specific gesture. Finally, there was no further discussion about the video or another denial the next day — Cuconato said he wouldn’t resign and the manager terminated his employment. As a result, Cuconato’s denial was limited to the initial meeting following the incident, said the court.

The court noted that the incident on its own was worthy of suspension, given the risk that the customer could have seen it. However, by itself it wasn’t serious enough to justify dismissal — it was Cuconato’s denial that Parker Auto used to justify dismissal. However, as the court mentioned, it wasn’t a persistent denial and Cuconato later tried to explain why he denied making the gesture. As a result, the court found that the misconduct wasn’t a very serious form of employee dishonesty and it “appears to have been an isolated and momentary lapse in a long, unblemished career.”

The court also found that Parker Auto suffered no harm to its reputation because of the gesture, as no customers observed it. In addition, there were no written harassment or disciplinary policies, which it made it difficult for Parker Auto to demonstrate Cuconato’s misconduct “struck at the heart of the employment relationship,” said the court.

The court determined that Cuconato’s misconduct wasn’t serious enough to destroy trust with his employer or indicate he no longer intended to be bound by his employment contract. As a result, Parker Auto wrongfully dismissed him.

“In my view, considering the limited extent and isolated nature of the incident, Mr. Cuconato’s long and unblemished record of service prior to this incident, a workplace environment that did not include written disciplinary policies and in which the employer failed to provide training to its employees on issues of harassment and workplace violence, dismissal was a disproportionate response,” the court said.

The court found Cuconato was entitled to 20 months’ wages in lieu of notice plus 10 months of health care benefits. Cuconato found a new job in November 2016, so minus his mitigation income from that, Parker Auto was ordered to pay $56,413.15.

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