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Jan 20, 2014

Are second chances worth it?

Reinstatement may not always be the best option, for the employer or the employee
    

By Jeffrey R. Smith

I’m sure most people can think of a situation where they wished they could’ve gotten a second chance at something. Hindsight is 20/20, and another crack could mean success. Labour and employment law is rife with second chances — or at least terminated employees asking for a second chance. Sometimes it works out, and sometimes it doesn’t.

Second chances more frequently come into play in unionized workplaces. In non-unionized circumstances, terminated employees who have successful wrongful or constructive dismissal claims rarely get reinstated. Rather, the remedy is usually damages in the form of pay in lieu of notice. This is because once a legal course of action is taken, the employment relationship is often deemed to be irreparable.

However, this isn’t always the case. It’s possible, though rare, that an employment relationship may be salvageable. If so, the employee could be reinstated. Resinstatement is a common remedy in labour grievances, particularly since there is a high bar for dismissal. Even if an employee is guilty of misconduct, they are often given a second chance to avoid termination, the “capital punishment” of employment law.

If an employee guilty of misconduct is reinstated, it’s usually because the court or arbitrator believes the employee can mend her ways and isn’t likely to re-offend. Such reinstatements can include last-chance agreements, or other conditions in order to make up for the misconduct. If the employee fails to live up to the terms in an agreement or conditions, the reinstatement can be voided and the termination upheld.

One might think an employee who is reinstated after being fired for misconduct would be glad of the second chance, but that’s not always the case. Recently, an arbitrator gave a second chance to an employee of an Ontario community living facility, but then took it away when the employee stubbornly refused to change his ways.

The employee had issues with how the finance manager handled certain payments to the union and holiday pay arrangements. On multiple occasions, he accused the finance manager of fraud and other underhanded practices. He also began referring to the executive director in derisive terms in various emails, which he later agreed were inappropriate. He claimed he was trying to get disciplined so he could share his opinions in a grievance setting.

After several warnings about his behaviour, the employee was terminated. In the grievance, the arbitrator saw the employee’s reasoning behind stirring the pot but agreed it was unacceptable behaviour. However, the arbitrator felt the employee was aware of the seriousness of his misconduct and deserved a second chance, since the employer hadn’t followed a course of progressive discipline. The employee was reinstated on the condition he provide a written apology to the finance manager and the executive director and have no other misconduct for 24 months.

A few days after his reinstatement, the employee wrote the apologies. However, they weren’t exactly sincere. For example, his apology to the finance manager included the caveat that in the future, “ if I decide that you are a lying, thieving sociopath, I will do so using the grievance process.”

When the arbitrator was made aware of these “apologies,” he immediately revoked the reinstatement.

There have been other cases — though perhaps not so extreme — where an employee reinstated with conditions doesn’t live up to those conditions and ends up being dismissed again. Every case is different according to its own circumstances, but one has to wonder how effective reinstatement is as a remedy. When employment is terminated, regardless of whether the employee or the employer is at fault, it’s likely going to affect the relationship between them. Is reinstatement really beneficial to both, or is it better to decide on a financial remedy and be done with it?

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 jeffrey.r.smith@thomsonreuters.com or visit www.employmentlawtoday.com for more information.

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