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Arbitration Cases: Dishonesty & Incompetence Not Always Just Cause for Dismissal

We are about to talk about rules of dismissal and discharge in unionized environments in my summer course. So I am reviving my Arbitration Cases series in which I summarize in case study format recently released arbitration awards.

Last week, Arbitrator Stout released his award in a discharge case involving Women’s College Hospital and SEIU, Local 1.

 

Key Facts:

The Grievor (GR) was 51 years old and had 29 years’ seniority.   Her job involved booking clinic appointments.  She had difficulty adapting to a new management system introduced in 2009, and soon began falling behind on appointment bookings and reporting late to work.  Nurses began to complain about slow booking times.  In December 2009, the GR was given a warning letter setting out how she was required to improve.  The GR came under closer scrutiny after that.  In early January 2010, the GR told her supervisor that all appointments had been properly booked when in fact two had not.  On Jan. 10, the GR was given a formal Verbal Warning, addressing the lateness issue, poor work performance, and dishonesty in regards to the two bookings that had not been made.  In late July 2010, the GR left for a vacation leaving some 33 unbooked appointments.  She did not advise the ER until August 10th, when she emailed to advise about the unscheduled appointments.  The GR claimed she had computer problems on her last day of work and was unable to get the bookings done.  She claimed she intended to come in the morning of her flight to complete the work, but she had a headache and was unable to come to work.  When the GR returned from holiday she was dismissed for breach of confidentiality, neglect of duties, and breach of trust.

The Issue

Did the Employer have just cause to dismiss the Grievor?

The Decision

The Employer emphasized the Grievor’s dishonesty in covering up unbooked appointments and leaving on vacation without telling the ER about a backlog of appointments.  According to the Employer, “The dishonesty was intentional and repetitive, including the falsification of records.”   The Union conceded that some discipline was warranted, but argued that discharge was too extreme in all of the circumstances.

Arbitrator Stout sided with the Union and reinstated the Grievor with what amounted to about an 8 month unpaid suspension without loss of seniority.

According to the Arbitrator, while dishonesty and poor work performance are serious,

not all acts of dishonesty give rise to a break down in the employment relationship. Each case of dishonesty must be examined in context, weighing both aggravating and mitigating factors to determine if just cause exists and if discretion ought to be exercised to substitute a lesser penalty for discharge

In this case, the misconduct was “not an act of  hardened criminality devised for financial gain”.   Rather, the GR was dishonest because she was trying to avoid embarrassment and further discipline.   The Employer suffered no loss.  The Grievor acknowledged her wrongs, apologized, and expressed regret.  Given her very long service record, and the fact the Arbitrator believed the GR had learned her lesson, reinstatement was appropriate:

I believe the grievor has learned a very hard lesson and a time served suspension will deter any similar behavior in the future. I am also satisfied that the trust between the grievor and Hospital can be restored. The grievor should now fully appreciate that any further dishonest conduct will surely result in discharge and no arbitrator would be inclined to provide any further chance at redemption.

Conclusions and Questions

1.   Do you agree with this outcome?

2.   How important do you think it was for the Arbitrator that the employee admitted her mistake and apologized at the hearing?

3.    If this was a nonunion employer, the ER would have been entitled to dismiss the EE.  The only question would have been whether he dishonesty and misconduct was sufficient to amount to cause for Summary Dismissal (dismissal without notice).  The employee would not be reinstated into a nonunion setting, even if it was determined that the employer did not have cause for summary dismissal.

Which model do you think strikes a fairer balance between the interests of the employer and the employee?

 

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One Response to Arbitration Cases: Dishonesty & Incompetence Not Always Just Cause for Dismissal

  1. Andy Reply

    May 19, 2011 at 10:28 pm

    1. This is a difficult question to answer. I agree with the outcome of the situation based on what happened. However, I do believe that the employer-employee relationship has been strained to the point that it is irreparable. I think there were several things that worked in favour of the grievor. 1) Lack of the use of progressive discipline 2) By removing duties from the grievor, she was able to do her job for the better part from Jan – July, 3) the mitigating factors that were identified by the arbitrator and 4) the employer suffered no loss. Given all of the above factors, I thought the outcome was reasonable. I do think it’s bizarre that the arbitrator concluded that there was no loss to the employer. Perhaps no direct loss, but certainly indirectly to fix the missing appointments, or there could have been other repercussions and/or liability that are incurred by the Hospital.

    2. Significant. Remorse is an important mitigating factors. Many arbitrators view this as an important piece of the employer-employee relationship because remorse demonstrates that the employee has an interest in repairing the employer-employee relationship and that they understood what they did wrong and therefore should be given an opportunity to “redeem” themselves.

    3. It would probably be reasonable for the employee to receive a long notice period if it was determined that the employer had no cause for dismissal, given her seniority and age. Although it is likely that she can find similar work in a short period of time.

    I think the non-union model strikes a fairer model between the interests of the employer and the employee. I believe the threshold to uphold a termination in a unionized setting is extremely high, given that it is seen as the “capital punishment” of employment law. I do think that it puts an unreasonable burden on the employer in many cases of reinstatement. The employer must now reintegrate the employee back to the workplace. Employees may see this case (now that it is in the public eye) and wonder why they have to work so hard, when someone who failed to do a series of things can get their job back. The employer will also have to manage the work environment between the employees as well. I think sometimes arbitrators minimize the employee-employee relationship when issuing reinstatements. To be honest, in this situation, the grievor in this situation is probably near eligibility for retirement in several years. Although I understand that the grievor is likely wanting her job back, the question becomes is it really the best thing for her to return to this job? Or perhaps, a long notice period would serve her better in this situation? These questions are rhetorical, but certainly are points to consider.

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