Our readers probably already know
that when a unionized employee is unjustly discharged from their
employment, the presumptive remedy from an arbitrator is
reinstatement to employment. But there are always exceptions
to the rule, and in a recent, unreported decision coming from
Alberta, an Arbitration Panel determined that a wrongfully
terminated union employee was NOT entitled to reinstatement.
The Grievor was Randall Morrison,
an asset management support clerk in the Capital and Asset
Management Department of the City of Calgary with six years of
service and a clean disciplinary record. He was also an avid
snooker fan, player, and manager of a regional snooker
organization. In response to information from a co-worker
that he was spending an inordinate amount of time online pursuing
his passion for snooker, management from the City of Calgary
undertook an investigation. They found that the Grievor in
fact was using the City’s computer system for personal
reasons while at work, including internet use and use of the
City’s servers for storing his personal documents.
Further, he was found to be in breach of the City’s policies
regarding use of technology resources, conflict of interest, and
the City’s sick leave policy. The City terminated the
Grievor, and the Union, CUPE Local 38, challenged the termination
on his behalf.
The Arbitration Panel found that
some measure of discipline was warranted given the Grievor’s
misconduct. However, given that the Grievor had a clean
discipline record, and the City did not engage any form of
progressive discipline, opting to jump straight to termination, the
Panel ruled that the City had fallen short of establishing that
termination was warranted in the circumstances.
Notwithstanding this finding, and despite the fact that the
presumptive remedy would typically be reinstatement, the Panel
refused to order reinstatement in this situation.
Subsequent to his termination, the
Grievor authored two lengthy Facebook messages, the first of which
was delivered to six co-workers, and the second which was delivered
to about 40 of his Facebook contacts. His messages accused
his manager, by name, of falsifying documents to set him up for
termination. There was no evidence to support that
claim. Further, the Grievor referred to this manager, by
name, as “a special kind of evil”, a “truly ugly
person”, as a “f**king loose-lipped corrupt
witch”, and concluded that he hoped her home was under
water. Of course this message was written during the
devastating Calgary floods of 2013, and the Manager’s own
family had been displaced from their home at the time.
While the Grievor offered some
excuses for his actions, ultimately the Panel decided that the
Facebook messages were extremely serious forms of misconduct, and
that the Grievor and Union could not realistically expect that he
would return to work for the City. The Panel reasoned that
“Through his own actions, the Grievor has completely
undermined the trust necessary to restore an employer/employee
relationship. Through his own actions the Grievor has
destroyed the viability of any employment relationship with the
City and as a result I decline to reinstate the Grievor.”
Ultimately, the Panel stated that
the Grievor deserved a lengthy suspension, and remitted the issue
of remedy in the form of damages back to the parties to resolve on
This case should provide a strong
warning for both employers and employees. While it is
important for an employer to enforce their workplace policies, they
must be mindful to not jump the gun on discipline, and try to
exhaust the appropriate levels of progressive discipline before
concluding to terminate a Union member from employment. It is
a very rare and special case where an arbitrator will not reinstate
an unjustly dismissed unionized employee. On the other hand,
employees must realize that when their misconduct, either prior to
or post-termination, is so repugnant that it irreparably damages
the employment relationship, even the great shield of Union
membership will not preserve their employment.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).