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January 12, 2017

Reinstatement of an Employee Who Engaged in and Admitted Misconduct

On Ontario arbitrator reinstated an employee who placed 101 calls to Jamaica over a two-year period using Air Canada calling cards made available to “to Customer Sales and Service Agents for distribution to passengers affected by Irregular Operations in order that they may contact family members”.

The grievor was interviewed and “immediately and truthfully acknowledged her conduct and apologized to the Company.”  Her employment was terminated, she grieved and the matter proceeded to arbitration where she again “volunteered her recognition that she had misconducted herself and, once again, apologized to the Company for her behaviour.” According to the arbitrator:

She explained that she had been so embarrassed that most of her family were unaware of what had taken place. She and her husband are financially responsible for a two-year old granddaughter. They have two children, aged 18 and 26. The Grievor has approximately 20 years service with the Company. She is 47 years old. She has a clear disciplinary record. She explained that she had been trusted by Air Canada and had worked in the revenue office and not only on ticket counters.

Although acknowledging that Air Canada had a legitimate interest in sending a “clear, present, and permanent message that theft will not be tolerated” and that “it cannot be that accumulation of long service with a clear disciplinary record provides employees with probable immunity from discharge” he nonetheless held that just cause must be assessed in context of the particular case.

Arbitrator Hayes stated that

In some cases, a lengthy disciplinary suspension without compensation will be sufficient. Loss of income for a lengthy period, in the typical case where alternative employment has not been secured, imparts a powerful lesson by itself.

Where misconduct of the type alleged here is admitted, it is essential, before reinstatement is even considered, that an Arbitrator be satisfied that a Grievor genuinely understands and acknowledges what has occurred and that any recurrence is highly improbable. There will be other relevant factors to be weighed in different cases.

The arbitrator concluded that the remorse expressed by the grievor, both at the hearing and when confronted by the Company in the course of its investigation, was genuine and she apologized.  He then goes on to suggest that the Company’s ”casual distribution of the calling cards led the Grievor to rationalize that use of such cards was somehow acceptable given their minimal value.”  It was, according to the arbitrator, “most unlikely that the type of misconduct in issue here will be repeated” and that she should be given an opportunity to redeem herself.

The case is Air Canada v Unifor Local 2002, 2016 CanLII 88965 (Hayes) and it provides an example of the individualized assessment of just cause and that termination is not automatic even in proven cases of serious misconduct.  Each case must be considered on its own facts having regard to the surrounding circumstances and any mitigating or aggravating factors.

See my earlier post Mitigating Circumstances Not Enough to Reinstate in a Theft Case and my newsletter article Reinstating an Employee Who Admits Theft?