Horticulturist’s job grows back

Discipline warranted but termination excessive: Arbitrator
|Canadian HR Reporter|Last Updated: 09/09/2013

A long-serving horticultural technician in Ontario was awarded his job back after he was fired over concerns about his performance and attendance.

Pat Koehler had more than 23 years’ service at the municipality of Chatham-Kent when he was fired on Sept. 19, 2012. One disciplinary incident was noted on his file.

The incident, which occurred on July 25, 2012, was a written warning issued to him for leaving work early without proper authorization.

Koehler left work that day because he felt unwell and though he told a co-worker what he was doing, he failed to properly inform his supervisor.

After a two-week absence, he returned to work on Aug. 8. The next day, Koehler was observed by a supervisor to be in the cab of a municipal vehicle talking to another employee. Koehler was not at the location to which he had been assigned.

The next day, Koehler was assigned to assist that same supervisor with preparations for a barbecue at a municipal park. While the horticulturist began the day at the park, he eventually left without authorization.

The supervisor waited for Koehler. When he did not return, the supervisor called Koehler’s acting supervisor to inquire after his whereabouts. The horticulturist was discovered in his truck reading a book while parked near the municipal greenhouse.

Concerns about his work performance were also noted. Koehler was scheduled to work four hours of overtime on Aug. 12. The municipal manager of parks and recreation had asked Koehler if he could spend some time picking up garbage left over from the barbecue at the park held two days earlier. That task was not completed.

The next day, Koehler was directed to do some weed spraying at the civic centre. However, that task was not completed as Koehler had left early that day because of illness.

In the wake of these incidents, the manager decided to check up on Koehler’s vehicle logs. The manager also checked to see at what time the greenhouse alarm was generally set each day in order to determine the time at which Koehler was leaving work.

The alarm logs showed that on 58 of 66 shifts between February and August, Koehler set the alarm anywhere from five minutes to one hour early.

Koehler was called into a meeting with the municipality. Accompanied by a union representative, the employee rejected assertions that he had failed to complete assigned tasks.

The horticulturist acknowledged that he regularly set the alarm early. However, Koehler said that it was his practice to set the alarm and then wait on-site, sitting in his air-conditioned truck.

Koehler was fired and the union grieved.

Misuse of time, failure to complete tasks

The municipality said Koehler had misused company time and failed to complete assigned tasks. His conduct amounted to an irreparable breach of trust and termination was warranted, it said.

The arbitrator, Norm Jesin, disagreed. Discipline was warranted but termination was excessive in the circumstances, he said

Koehler gave the impression of being comfortable in a job where not much was demanded of him, said Jesin. If he did not approach tasks with any particular sense of urgency, management likely bore some responsibility.

And it was unlikely Koehler could have approached his work in this fashion for any length of time without the tacit or overt knowledge and acquiescence of his supervisor (who did not testify), said the arbitrator.

Nevertheless, the municipality of Chatham-Kent was entitled to expect more from its employee, said Jesin.

“It was entitled to demand that (Koehler) follow instructions and remain at his assigned tasks in the park until they were complete. And having failed to meet those demands, (he) did subject himself to the discipline,” he said.

“However, I do not accept that the employer was entitled to discharge (him) given his 23 years’ seniority and given the evidence regarding (his supervisor’s) acceptance of (Koehler) leaving early on a somewhat regular basis.”

The employer was entitled to discipline Koehler for his failure to complete assigned tasks, said Jesin.

“I also accept that it was entitled to impose discipline for the inordinate amount of time (he) appears to have spent in his truck. In my view, the cumulative amount of discipline for all these misdeeds should have been no more than three months.”

Koehler was ordered reinstated and compensated for lost wages less the amount for the three-month suspension.

This article was originally published in Canadian Labour Reporter, a sister publication to Canadian HR Reporter. Visit www.labour-reporter.com for more information.

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