By Jeffrey R. Smith
It’s well-established that seniority rules.
In unionized environments, the precedence of seniority is usually enshrined in various collective agreement elements. But seniority can play a key role in handling employees in any environment, as it can be a key mitigating factor when it comes to determining discipline and just cause for dismissal.
When it comes to serious misconduct by long-term employees, things can get a little dicey for employers. How should an employer handle it? How much weight should the employee’s service record be given?
Of course, the quality of the employee’s record must come into play, not just the length. An employee with 20 years of discipline-free service will be given a longer leash than one with 20 years of service but with several instances of discipline. But when the misconduct is very serious, to the point where the employer may be concerned about the safety of the workplace, should length of service outweigh those considerations? Should there be some forms of misconduct that result in automatic termination?
A recent Ontario arbitration case recently saw an employee challenging his termination for threatening a co-worker. The employee, active in the union, thought his co-worker was mocking other employees who had been laid off. The employee went up to the co-worker and said into his ear, “If it was me losing my job, I would stick a knife in you and slit you to the top.”
The co-worker was stabbed several years before — of which the employee was aware — so naturally he was upset. This led to more words exchanged and a later confrontation with yelling. Eventually, the employee was fired after showing no remorse and denying he made the threat.
However, an arbitrator noted the employee’s nearly 24 years of service with only a couple of minor instances of discipline on his record. While other factors were considered — such as the fact the employer didn’t seem to take the threat completely seriously, as he was allowed to finish his shift that day — the main mitigating factor was his service record. The arbitrator found the employee had built up years of “trust equity” that should not be exhausted by this one incident. The employer was ordered to reinstate the employee with a lengthy suspension substituted for the dismissal.
There’s no doubt when an employee has many years of good service they should be given credit for that when something bad happens, particularly if it’s likely it could be an isolated incident. And, a lengthy unpaid suspension is significant discipline.
But when an employee makes a threat like the one above, should the employer be expected to have to return the employee to the workplace?
Threatening to stab a co-worker — particularly one who had already been stabbed in the past — could be considered extremely poor judgment and potentially a danger to the workplace, especially since the employee didn’t acknowledge his misconduct.
Trust equity can take a long time to build up, but it can be destroyed quickly.
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at email@example.com or visit www.hrreporter.com for more information.