An employee who had been previously disciplined for threatening to bring "ammo" into work, was properly dismissed where shortly afterwards he committed an unsafe act and was repeatedly dishonest.
The "ammo" violence threat had resulted in a previous arbitration award in which the arbitrator reinstated the employee with a 128-day suspension and strict last-chance conditions. That arbitrator, who found that the employee had lied to the employer in its "ammo" threat investigation, had stated that "it is sensible to make any reinstatement conditional on future good behaviour".
Five days after being reinstated, the employee committed an unsafe act at work in relation to the use of a "spreader bar". He had also walked out of a meeting with company management, and was again dishonest to his employer in the course of its investigation. The employer fired the employee and the union again grieved the firing.
Ruling on the second dismissal, Arbitrator Peter Chauvin held that the grievor, who did not testify at the hearing, "has not done anything to cause me to believe that he accepts that he did anything wrong in connection with his use of the spreader bar, his dishonest statements to Mr. Hastings, or his insubordination in walking out of the meeting with Mr. Lepine, Mr. White and Mr. Black. The Grievor has clearly not in any way acknowledged this misconduct, and has not shown any remorse or offered any apology for it. Again, and quite to the contrary, the Grievor denied that he engaged in any such misconduct to Mr. Hastings, and chose to not testify at the arbitration hearing. In doing so, he certainly did not acknowledge his misconduct, or show remorse for it, at the arbitration hearing."
Arbitrator Chauvin also held that it was a "very serious aggravating factor that the Grievor was not open and honest with the Employer at the time of the investigation", particularly as the previous arbitrator had held that the employee had been dishonest in the employer's "ammo" investigation.
This decision demonstrates that employers are entitled to demand honesty of employees during workplace investigations, and that repeated dishonesty, whether or not combined with other disciplinary offences, can justify dismissal.
National Steel Car Limited v United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 7135, 2012 CanLII 25292 (ON LA)
About Fraser Milner Casgrain LLP (FMC)
FMC is one of Canada's leading business and litigation law firms with more than 500 lawyers in six full-service offices located in the country's key business centres. We focus on providing outstanding service and value to our clients, and we strive to excel as a workplace of choice for our people. Regardless of where you choose to do business in Canada, our strong team of professionals possess knowledge and expertise on regional, national and cross-border matters. FMC's well-earned reputation for consistently delivering the highest quality legal services and counsel to our clients is complemented by an ongoing commitment to diversity and inclusion to broaden our insight and perspective on our clients' needs. Visit: www.fmc-law.com
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.
