On February 6th, 2014, the Superior Court allowed the application for
judicial review of an arbitration award having accepted an
employee's grievance following his dismissal.
In this case, an intoxicated employee caused an accident while
driving a forklift. Following this event, the employer wishes to
dismiss him for violating a policy of the company as well as for
endangering his safety and that of his colleagues. However, the
employer decides to enter into a "last chance" agreement
that allows the employee to keep his job on the condition that he
completes a closed therapy. Shortly after starting the therapy as
agreed, the employee abandons it and chooses instead to undergo an
external treatment as an outpatient. The employer then decides to
dismiss the employee on the grounds of non-compliance with the
The arbitrator recognizes that the actions of the employee
constituted a serious and willful misconduct. However, the
arbitrator, taking into account the efforts and motivation
demonstrated by the employee and the choice of the employer to give
him another chance, finds that the employer failed to exhaust all
available means to ensure the rehabilitation of the employee.
The arbitrator concludes that the dismissal was a
disproportionate sanction for the non-compliance with the agreement
and replaces the dismissal with a six-month suspension.
The Superior Court
The Superior Court quashes the award, finding that the
arbitrator exceeded his jurisdiction on several levels and
committed unreasonable errors in his decision.
In particular, the Court emphasizes the failure of the
arbitrator to consider the prior disciplinary record of the
employee, who had been subject to a disciplinary suspension of ten
days. Moreover, the judge notes that the powers of the arbitrator
regarding last chance agreements are limited to verifying whether
the dismissal is actually the result of a non- compliance with a
condition specified therein. Thus, the arbitrator should not have
modified the content of the agreement to provide an additional last
chance to the employee and to decide that the dismissal was
disproportionate. In addition, the arbitrator should not have given
such weight to the evidence of the rehabilitation attempts by the
employee, as it was an irrelevant subsequent event to the review of
the appropriateness of the sanction imposed.
In sum, the judge is of opinion that it was "absurd"
to conclude that a breach by the employee of the last chance
agreement could excuse the serious and willful misconduct committed
by the employee initially driving a forklift while intoxicated.
Please note that an application for leave to appeal was filed
March 7, 2014 in this matter.
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