Earlier this week, I described a case in which a court ruled that an employee who cursed at her employer could not be dismissed for cause, but was entitled to reasonable notice of the termination. That was an example of how a court in a non-union setting deals with the issue of cause under the common law mode. The question in the non-union setting is whether the employee’s belligerence is serious enough to warrant the employer dismissing the employee without the usual requirement under the common law to give notice. The employee “won” in that case, which meant that the employer was ordered to pay her damages for “reasonable notice”. She did not get her job back.
How about in a unionized setting? There, the rules are different. A unionized employer cannot dismiss an employee by simply giving them notice. Rather, unionized employers must have “just cause” to dismiss an employee, in other words, a reason and a pretty good one. And courts don’t decide if an employer has just cause, labour arbitrators do.
So, consider an arbitration award in a case called Smurfit-MBI and the Independent Paperworkers, in which a unionized employee was dismissed for giving his supervisor “the finger”. The arbitrator ruled that the “finger” means F-off in our culture. The employee had worked for the employer for about 7 years, but already had 7 prior incidents of discipline, including 4 one-day suspensions, and 1 three day suspension, mostly for poor performance but also for being belligerent to a supervisor.
However, despite that dismal record, the arbitrator ruled that the employer did not have just cause for dismissal. The arbitrator found that the employee was in a bad mood because his dog was sick, and that he “just wanted to left alone”:
…the evidence leads to the conclusion that he simply wanted to be left alone, not that he intended any insubordination. In this regard, I view his actions as impulsive and not premeditated insubordination. In these circumstances, it is possible to understand why the grievor acted in such an inappropriate manner. While some discipline is warranted, the ultimate penalty of discharge would be too harsh in this situation. His misconduct is serious and does amount to disturbing behaviour. But it was also a momentary gesture instigated by both personal emotions and job frustration. The frustration is no excuse for his actions, but his emotional state and the short nature of the incident diminish the seriousness of the situation. There is nothing in the evidence to suggest that he was threatening or attacking the authority of his supervisor. Therefore, this is an appropriate case to exercise my discretion and reinstate the Grievor on terms and conditions.
Note then that the reasoning in this case is similar to that in the non-union case I discussed in the earlier post. In both cases, the decision-maker found that the employee’s conduct was a spontaneous outburst owing to the fact that the employee was in a foul mood.
But note too that there is a big difference in the two outcomes. The non-union employee loses her job but gets some cash in lieu of the notice she should have received. The unionized employee gets his job back, albeit with a 2.5 month unpaid suspension substituted. Courts do not reinstate employees, even when the employer had no cause to dismiss the employee. Arbitrators can, and often do, reinstate unionized employees when the employer does not have “just cause” to dismiss.
Do you think it is fair that non-union employees receive less job protection than unionized employees? Should governments pass laws (like we have in the Federal jurisdiction) requiring employers to have a good reason to dismiss an employee and allowing adjudicators to reinstate wrongfully dismissed employees?