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Oct 25, 2010

Second chances after big-time mistakes

Is an employer obligated to trust an employee after a bad lapse in judgment?
    

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

Employment and labour law is rife with cases where an employee was fired or disciplined for misconduct and then claimed the punishment was too harsh. Discipline can be a tricky thing to manage for employers, especially when mitigating factors such as length of service and the employee’s previous record come into play.

Sometimes employers can be vexed when the discipline is ruled to be too harsh by courts or arbitrators, despite the perceived seriousness of the misconduct. It can be hard to figure out what it takes to get fired or receive serious discipline, especially if the misconduct shakes the employer’s faith in the employee’s ability to do a good job.

How good does an employee have to be to deserve a second chance? How bad does misconduct have to be to warrant serious discipline? These are questions that can be difficult to answer.

Take the tale of a long-standing Canadian Border Services Officer who got into trouble with the law. He was a well-performing officer who received commendations and good reviews. However, one day in late 2006 after some trouble in his personal life, he went for a drunken tour in his vehicle and ended up hitting a motorcycle. The driver of the motorcycle was seriously injured, but the officer took off without checking if he was okay. The police found him at home, where he had continued drinking, and arrested him.

The officer was convicted of impaired driving causing bodily harm and leaving the scene of an accident. Though the Canada Border Services Agency (CBSA) had allowed him to continue to work after the initial arrest, once the convictions came down the agency felt it couldn’t trust him as an officer. His job had a lot of responsibility and had little supervision. In addition, as a peace officer he had the power to arrest drunk drivers — a crime which he was just convicted of.

Because of his good work record, the CBSA decided to demote the officer instead of fire him. However, an arbitrator said the officer’s record gave reason to think he could continue doing his job well, despite the severe lack of judgment displayed in the car accident, an ordered full reinstatement after a temporary demotion for disciplinary reasons.

Arbitrators and courts are there to evaluate circumstances and pass judgment on difficult situations. But are they in a position to determine whether an employer can truly trust an employee with significant responsibility after an incident where the employee showed extremely bad or careless judgment, especially if it resulted in a criminal conviction? Should a third party be able to tell an employer with whom to trust its business after such an incident, especially if it’s in the public eye?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit www.employmentlawtoday.com.

    
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