Independent investigations found wrongdoing; former manager threatened legal action
An Ontario arbitrator has upheld a one-day suspension for a worker who continued to make allegations of “illicit” behaviour against a former manager after two investigations had found the allegations to be unsubstantiated.
The worker was employed as an urban inspection designer in the transportation and engineering department for the Town of Oakville, Ont. He was hired in 2007.
In June 2020, the town issued the worker a letter of expectation relating to emails he sent to a co-worker. The letter outlined expectations for the worker going forward.
On July 20, the worker submitted two complaints about his manager at the time, who was the director of the department. One complaint was under the town’s respectful conduct procedure and the other was through the ethics and efficiency hotline.
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Two independent investigations
The town retained two external investigation firms to conduct independent investigations into the worker’s complaints. Both external investigators concluded that the complaints against the manager were unsubstantiated. The worker was informed of the results in December.
About a week after the worker was told of the investigation results, the town issued him a second letter of expectation regarding emails to co-workers. This letter again outlined the expectations for him regarding his conduct going forward.
The worker’s manager retired in early 2021. However, in September, the worker emailed his current manager reiterating his allegations against his former manager, saying that the former manager didn’t do an inspection in accordance with approved plans. He said that he wanted confirmation that senior staff were aware of and supported “this persistent illicit behaviour.”
Although the worker only sent the email to his current manager, the former manager learned of it. On Sept. 29, the former manager contacted the town to complain that the worker was continuing to assert that he had engaged in wrongdoing, despite the outcomes of the investigations. He added that if the worker continued to “malign and slander my name,” he would have to commence legal action against the worker and the town for allowing the slander to go unchecked.
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Suspension for insubordination
The town determined that the worker didn’t exercise sufficient caution as emails could be easily shared, and the statements were untrue and unnecessary. It suspended the worker for one day without pay for insubordination on Oct. 18. The suspension letter stated that the worker continued to make “allegations of impropriety in respect of your former manager and director when these same allegations have been already investigated and been found to be without merit.” It added that to raise the allegations after they had been investigated was “unprofessional and disrespectful and potentially leaves yourself and/or the Town open to defamation claims.”
The union filed a grievance, asserting that the suspension was unwarranted and lesser discipline was appropriate. It argued that someone else likely distributed the email to the former manager and the worker was requesting answers for his concerns, as he didn’t feel that the investigations had given him closure.
The arbitrator noted that the worker’s email questioned the former manager’s competence and professionalism while also criticizing senior staff for supporting the behaviour and suggesting it was illicit. This came after third-party investigations had exonerated the former manager, said the arbitrator.
The arbitrator also noted that the worker received two previous non-disciplinary warnings about sending inappropriate emails to co-workers, which made him aware that such behaviour could be subject to discipline.
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Reckless, insubordinate conduct
The arbitrator found that the worker’s conduct constituted insubordination and deserved discipline. Although the worker had a lengthy time of service and no prior discipline, he persisted in negative allegations against his former manager and suggested that he had been involved in illicit behaviour, despite the investigation findings. Even if it wasn’t the worker’s intention that the former manager see his email, his behaviour was reckless and insubordinate, said the arbitrator.
“The [worker’s] act of denigrating his former manager (as well as implying that senior staff were also at fault) by sending unfounded allegations to his current manager was the main problem, which was compounded by his disregard for how such allegations might be spread,” said the arbitrator.
The arbitrator determined that the worker’s misconduct was serious, it was repetitive, and he had received warnings about it. As a result, a one-day suspension was “a reasonable and measured response” to the insubordination,” the arbitrator said in dismissing the grievance. See Oakville (Town) v. Canadian Union of Public Employees, Local 1329, 2023 CanLII 10437.
