Discipline and Discharge - Stewart McKelvey

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Discipline and Dischargehave known there was a progressive disciplineprovision in the collective agreement. Therefore,he should’ve taken additional steps to contacthis employer to advise that he wouldn’t beshowing up for a scheduled shift. Further, themanager testified that there were no messagesleft at the time that the grievor alleges he calledwith respect to the shifts in question.What the arbitrator said: Discharge upheld.Lakeridge Health Corporation and OntarioPublic Service Employees Union (BogdanKoscik)What happened: Grievor discharged forallegedly falsifying overtime claims. This wasbrought to the attention of the supervisor whenanother employee made a remark about leavingat a certain time because the grievor hadalready left. This was inconsistent with theovertime claimed for that day. Characterized as“time theft” by the employer. There were alsoseveral incidents of insubordination leading up tothe discovery of the falsified overtime claims.The falsified claims and the misconduct wereestablished on the facts.What the arbitrator said: Discharge upheld.Although the employer didn’t engage inprogressive discipline, the arbitrator found thatthe overall impact of the grievor’s conduct madeit difficult to rationalize reinstatement. This wascompounded by post termination conduct. Thisincluded emailing the CEO directly to discredithis manager and to attempt to outline theinjustice of his termination. The grievor alsocontacted the sales manager for a supplier ofthe employer indicating he was going to takedown the employer and the manager herself.The arbitrator found that the grievor’s posttermination conduct put him in a dramaticconflict of interest with his former employer. Hefurther found that reinstatement would be totallyinappropriate in the circumstances.Invista (Canada) Company andCommunications, Energy and PaperGrievorsUnion of Canada (H. Thompson)What happened: Grievor discharged forremoval of company property, specifically aportable generator, without authorization. Theportable generator was never found. TheArbitrator found there was sufficient evidence toconclude on a balance of probabilities that thegrievor had removed the generator. The decisionwas primarily based on established facts andfindings of credibility.What the arbitrator said: Discharge upheld....what is strikingly evident in this uniquecase is [the grievor’s] repeated lack offorthrightness in integral aspects aboutwhat occurred. In my view, this repeatedlack of forthrightness can’t be crediblyreconciled on any principle basis, and isnot without significance.The grievor’s lack of forthrightness was anattempt to conceal the fact that the grievor didactually take the generator. The grievor hadengaged in serious misconduct. Further, hehadn’t acknowledged his culpability. It wasn’tjust unreasonable in the circumstances toimpose a lesser penalty. Discharge was upheld.- 4 -
Discipline and DischargeHotel-Dieu Greys Hospital and OntarioNurses Association (Joanne Jacobs)What happened: Grievor went off work due toinjuries incurred in a motor vehicle accident.Malingering established on the facts: While ondisability leave, the grievor went on a 10 dayfamily camping trip during which time she wasbicycling and swimming. The assistant directorof human resources testified she had seen thegrievor at her son’s hockey games and lacrossegames and the grievor was sitting, standing,walking, clapping and shouting in a wayinconsistent with her claim to physicallimitations. The mployer conducted surveillancefor over 12 days starting on September 12,2009. Surveillance report showed level of activityinconsistent with grievor’s claimed restrictionsand limitations. Employer believed grievor hadcommitted long term disability (LTD) fraud andthat this would eventually be reflected in thehospital’s insurance premiums. Employerfollowed up with the union to inquire into whetherthe grievor’s capabilities had changed. As of theend of October 2009, they had received noresponse. Employer inquired with the grievordirectly to arrange for a meeting for November 3,2009. The grievor wanted to wait until after anupcoming appointment with her family physicianon November 26, 2009. She said she had beenworking at the gym with a trainer and believedthere would be some changes in her restrictions.Based on this conversation, the employerbelieved that the grievor suspected she hadbeen under surveillance. In the end the meetingdid occur on November 3, 2009. At the meeting,the surveillance was disclosed to the grievor andher employment was terminated.What the arbitrator said: Discharge upheld.Arbitrator found that the grievor had engaged indishonest and fraudulent conduct. As a result,there was no question that the hospital had justcause to discipline. He further concluded that onthe facts there was little to support the grievor’srequest for a substitution of lesser discipline withreinstatement. The following factors were ofinfluence: Grievor not a long-term employee; Conduct premeditated – involvedmisleading employer and healthcareproviders; Grievor didn’t acknowledge wrongdoing– continued deception throughouthearing; No evidence of economic hardship onGrievor or her family; and Grievor destroyed degree of trustrequired to maintain employmentrelationship.Credit Valley Hospital and Canadian Union ofPublic Employees (N. Brathwaite)What happened: Grievor discharged for breachof employer’s code of conduct. In September2010, an adolescent outpatient committedsuicide by jumping from the top of multi-levelparking garage. Grievor, who was assigned toclean up the scene, took pictures with his cellphone and posted them on his Facebook pagewith a caption under each picture. They weredeleted the following day.- 5 -
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