Discipline and Discharge - Stewart McKelvey

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