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Reversal of fortune for unionized employee

Just cause may not be just cause for dismissal if a unionized employer doesn’t follow the collective agreement

By Jeffrey R. Smith

There are many things employers have to keep in mind and follow when it comes to dismissal and other forms of discipline for employee misconduct.

Employment standards legislation and common law have established the bar for things like just cause, progressive discipline, and constructive dismissal. But when an employer’s workforce is unionized, that can bring a whole host of other factors into play.

Collective agreements have their own set of rules by which the employer and union agree to follow through negotiation. While minimum employment standards can’t be contracted out of, collective agreements usually raise the bar for dismissal and discipline. And even when an employer has just cause for dismissal, it better make sure it follows the collective agreement or just cause could turn into a reinstatement — bringing back an employee who doesn’t really deserve to be there.

An Ontario employer recently found out the perils of ignoring procedure established in its collective agreement. The employer ran a factory manufacturing forged and assembled steel products. One of its employees, who arranged to work almost exclusively on the midnight shift, was found by a supervisor asleep at his station at a machine while his crew continued to work. The worker denied he was asleep, but his co-workers acknowledged he had a habit of falling asleep at work. He had even been disciplined previously for similar misconduct.

The supervisor told the worker to go home and the worker was placed on suspension while the employer investigated. The investigation supported the conclusion the worker was caught sleeping and had done so in the past, so it was decided to terminate the worker’s employment. The union contested the dismissal, with its primary argument being the worker was never allowed to have union representation with him, either in his discussion with the supervisor immediately following the incident, or before he was dismissed.

An arbitrator found the worker’s misconduct was just cause for dismissal. However, the arbitrator noted the collective agreement stipulated “when the company meets with an employee to obtain information that may lead to such employee’s reprimand, suspension or discharge, a committeeperson shall be present. An employee shall only be disciplined, suspended or discharged in the presence of his/her committeeperson.”

The reason for the lack of a union representative immediately following the supervisor catching the worker sleeping may have been that there wasn’t one working on that shift, but it would have been reasonable to wait a few hours until one came into work, said the arbitrator. In addition, there was no reason not to meet with the worker and a union representative before making the decision to dismiss, particularly since this was required in the collective agreement.

Despite the worker’s misconduct and the fact the employer conducted a fair and , reasonable investigatithe employer was ordered to reinstate the worker because it violated his rights under the collective agreement by not allowing him union representation before he was suspended or dismissed: see Crosby Canada Inc. and Unifor, Local 1285 (Pegoretti), Re, 2015 CarswellOnt 3283 (Ont. Arb.).

Even when employers act what would be considered reasonably and fairly under employment standards legislation and other doctrines of employment law, they can still get into trouble if their workforce is unionized. A collective agreement brings a different element into the equation that can still get an employer into hot water, regardless of how it meets employment standards requirements.

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Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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