Discipline and Discharge - Stewart McKelvey

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Discipline and Dischargejob; failure to follow protocols respecting hiswork as a residential counsellor; and a threat tothe executive director. In short, because theemployer concluded that the employmentrelationship had broken down.What the arbitrator said: Grievor reinstatedwithout back pay and without loss of seniority oncertain conditions. Management played aninnocent role in creating, for the grievor, a senseof being poked or picked upon that led to stressand thoughts that he later expressed. Thesethreats might be seen as a cry for help and thismitigated or blunted the extent of the threat. Themedical report was clear that the grievor wasn’ta threat.In the end this is a close case. As I havediscussed above, discipline was warrantedfor both the failure to follow protocols andthe threat. Also weighing against thegrievor is the fact that he made a threatthat was communicated to his employer,causing some fear and upset with at leastone of his supervisors. Weighing againsthim too is the fact that he continues todemonstrate little willingness to acceptresponsibility for his actions or to doanything that would demonstrate to thosehe threatened (albeit indirectly) that he wasinterested in changing his behaviour.On the other hand and weighing in hisfavour is the fact that he (grievor) hadworked hard to improve in his years as aresidential counsellor. He has had goodperformance reviews in the past. He hasnever actually assaulted or threatenedanyone at HCRS – whether supervisor, cogrievoror resident – in the years he hasworked there. Moreover, the employer didhave a role in creating or exacerbating thestress under which he was labouring....Toronto Transit Commission and MarkMcIlroyWhat happened: The grievor was dischargedfrom employment after two supervisors smelledalcohol on his breath at work. A specific penaltyclause was included in the collective agreementthat allowed for discharge where an employeewas found to be impaired while on duty byreason of consumption of an intoxicatingbeverage. The grievor had five years seniorityand no disciplinary record. The day of theincident a senior employee complained to thesupervisor that the grievor “reeked of alcohol”.The supervisor then confirmed in person that theemployee smelled of alcohol. The initialsupervisor had a second supervisor confirm herown observations. The union steward requestedthat the grievor be re-assigned to a non-drivingjob for the day. The supervisor believed thegrievor wasn’t fit for any of his duties andrelieved him of his duties for the day anddischarged the grievor the following day. Oncross-examination, the supervisor concededrelieving him of his duties was erring on the sideof caution. She smelled alcohol on his breath,but he wasn’t otherwise showing signs of beingunder the influence. The grievor claimed he hadfour regular sized cans of beer the night before,but didn’t drink anything that morning. Thesenior manager involved decided to impose thespecific penalty of discharge on his belief thatthe supervisor wouldn’t still be able to smellalcohol if the last beer had been consumed thenight before. The employer also relied on- 8 -
Discipline and Dischargetestimony from the supervisor that the grievor’seyes were red or bloodshot.What the arbitrator said: Discharge set aside.The arbitrator held that he couldn’t include on abalance of probabilities that the grievor wasimpaired on the morning in question. Thesupervisor’s testimony was consistent with herdetailed report from that day, except there wasno mention of red eyes in the report. The caselaw showed that something more was neededthan the smell of alcohol to establish impairmentby observation. He concluded that due to thesmell it was proper for the supervisor to send thegrievor home and relieve him of the duties forthe day. However, this was insufficient towarrant the imposition of specific penalty ofdischarge the next day and orderedreinstatement with no loss of seniority andcompensation subject to the duty to mitigate.Toronto Community Housing Corporationand TCEU, Local 416 (Winson Duncan –Grievor)What happened: Grievor discharged forabusive use of a work related cell phone. Thegrievor was a senior superintendent and a cellphone was required to perform his job duties. Hehad no landline or personal cell phone at thetime. He had a common law partner and a childwith a serious medical condition. Both weredeported to St. Vincent’s and he began using theemployer-supplied cell phone to communicatewith them. The employer’s cell phone policyallowed this, as long as the employeereimbursed any charges incurred for personaluse. Extensive long distance chargesaccumulated. The employer held a meeting withthe grievor and asked for (1) repayment and (2)- 9 -for the grievor’s agreement that he wouldn’t usethe phone for long distance calls. The grievormade some attempts to set up a repaymentplan, but for unknown reasons the repaymentplan didn’t get implemented. He continued touse the cell phone for long distance calls to hisfamily. Six months later the bill had accumulatedto over $8,000. Another meeting was held andthe same promises were made. Again, thegrievor took steps to set up a repayment plan,again this failed on the employer’s end andagain the grievor continued to use the phone forlong distance calls. At the time of his discharge,the bill was over $12,000. The employer neveractually showed the grievor a copy of the bills,but he accepted the totals. At the dischargemeeting, the union steward referenced therepayment plan that had been set up through thesupervisor, but the monthly charges for recentuse far exceeded the monthly repaymentsagreed to.What the court said: The arbitrator agreed thatdiscipline was warranted, but substituted alesser penalty he believed was just andreasonable in the circumstances havingconsidered the following facts: The issue of personal use didn’t ariseuntil his spouse was deported; The policy of the employer was thatemployees could use the cell phone forpersonal use as long as they reimbursethe employer for any costs incurred; The grievor frequently used calling cardsto cover the cost of the phone calls anddidn’t have an alternative phone line touse; and
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