Unsupported allegations 'disruptive to his relationship with the company… and affected the workplace'
“A proper investigation in respect of allegations of serious misconduct will always be well-served, both in identifying potential misconduct or determining if the allegations are made in bad faith - a proper investigation policy is always a benefit to the employer, regardless of the outcome of the investigation.”
So says labour and employment lawyer Michael Horvat of Aird & Berlis in Toronto, after a federal arbitrator upheld the firing of a worker for just cause based on the worker spreading unsubstantiated allegations that the company and union officials engaged in bribery, conspiracy, and misuse of union funds.
The worker was a pilot for Jazz Aviation, a regional airline based in Halifax. He was initially close friends with another pilot, “GR”, who was the union’s grievance chair. However, they had a falling out in 2017, after which the worker began denigrating GR and they stopped speaking to each other.
In 2018 and 2019, GR was told by other Jazz employees that the worker had been telling employees that GR was a thief and Jazz was paying union executives bribes to help pass a memorandum of settlement that had been negotiated recently. The worker was also saying that a not-for-profit organization that the union operated was being used for money laundering, including for money that Jazz had paid executives to settle a grievance over an incentive plan.
GR was upset, as he wasn’t involved in the not-for-profit organization, all of its financial records had been audited, and the worker had never asked to see them. He was also concerned that unsubstantiated rumours would negatively impact the union’s unity and affect their interests.
In January 2019, another employee texted GR about an encounter she had with the worker, during which the worker had made similar allegations and said “the union guys are all crooks,” which the employee said had shocked her.
Mass email with allegations
On Jan. 21, the worker sent an email to at least 100 Jazz pilots with the allegations of bribes and money laundering. The email listed the names of the union members in office when the last collective agreement was ratified and encouraged all Jazz pilots to follow up on concerns with the not-for-profit organization. Other employees reported similar conversations with the worker.
GR filed a complaint about the worker and Jazz investigated, asking the worker to attend a meeting with management on Feb. 19. The worker denied making the bribery allegations and said that “things are said in personal relationships that you don’t talk about in the workplace.” He said that the purpose of the mass email was to “know who was involved when these things happen” but insisted there were no allegations about bribing or kickbacks. The worker also claimed that he didn’t talk about other people at work.
The airline interviewed several other pilots who reported hearing the worker make allegations of bribery, embezzlement, and conspiracy against the company and the union.
Jazz determined that the mass email directly implicated and disparaged the company with no evidence, which negatively impacted its reputation and workplace morale. Since the worker refused to own up to his conduct, he lacked credibility and the company had no reason to believe that he wouldn’t continue to behave that way.
On May 23, Jazz terminated the worker’s employment for making inappropriate comments about GR and the company, which undermined their reputations, caused a toxic workplace, breached its workplace harassment policy, and breached its trust in him.
Worker claimed he was whistleblower
The union grieved the termination, claiming that he was a whistleblower protected under the Canada Labour Code and other legislation and he was obligated to report misconduct when he saw it. It also argued that the worker had 30 years of service, his comments weren’t made in a public forum, and they arose in the context of internal union affairs, so there was no cause for any discipline.
The worker declined to provide evidence to support his allegations, saying that it didn’t matter whether his complaints led to active investigations, just that he had a “moral and legal obligation” to report on misconduct that happened on the “balance of probability.”
The arbitrator found that the worker’s actions went beyond normal internal union affairs, as they directly impacted Jazz's reputation and operational trust. Despite several investigations by Jazz and related authorities, no substantiation for the worker’s claims was presented during the hearings, the arbitrator said, adding that the mass email was “filled with one false insinuation after another” despite the worker having ample opportunity to bring forward evidence to support his allegations.
The arbitrator rejected the worker’s assertion that he was a whistleblower, finding that his actions were "not consistent with good faith obligations" and noting that genuine whistleblower protection under the company’s Code of Ethics would require formal reporting to the company, which the worker didn’t pursue.
“I think a lot of people think they're whistleblowers, but there's a very strict limitation with respect to whistleblowers, and legislation that protects whistleblowers is largely focused on government operations,” says Horvat. “There was absolutely no substance that the arbitrator was able to determine as to the worker’s allegations, so even if [the worker] was afforded some protection, either as a union official or as outing improper conduct, it wasn’t substantiated, and he wasn’t forthcoming with evidence for his underlying allegations.”
Effective investigation into bribery allegations
The arbitrator also found that Jazz’s investigative process, which involved interviewing multiple employees, was determined to be adequate with no indication of improper influence or coercion. Several employees reported discomfort with the worker’s comments and GR stated that they damaged his reputation among colleagues. Another pilot noted that the distrust generated by the worker’s comments posed a potential risk to flight safety, particularly given the collaborative requirements of cockpit operations.
The investigation wasn’t driven by the allegations, but the need for Jazz to act in good faith and consider the allegations, according to Horvat.
“The obligation of the employer is to not take the allegations at face value,” he says. “It’s an acceptance of having to look into the allegations, give them consideration, and then make a determination - which in this case also led to a determination that the investigation supported termination.”
The arbitrator found that the worker’s allegations couldn’t be considered off-duty conduct due to their effect on workplace cohesion and employee trust. Even if the worker had an obligation to bring forward legitimate concerns, he had an obligation to act reasonably and in good faith – which wasn’t the case as he had no evidence to support his allegations, the arbitrator said.
“The fact that the worker was off duty didn’t sever the nexus between his allegations, who the comments were being made against, and in what forum the comments were being made,” says Horvat. “The fact that he happened to be off duty at the time was secondary to the fact that he was clearly making accusations that he knew or should have known were potentially disruptive to his relationship with the company and the employer, and detrimental to their operations because they affected the workplace.”
Just cause termination
The arbitrator determined that the worker engaged in egregious misconduct that justified termination, adding that even if the worker was unjustly dismissed, reinstatement was untenable due to a pilot's role requiring a high level of trust, co-operation, and safety awareness - which the worker’s allegations and subsequent refusal to accept responsibility had irreparably compromised.
“The arbitrator concluded that the worker’s actions were so unsupported and the claims were so beyond the ability of the work to give any credibility to them, that it caused and could have caused grievous harm to the operations and good faith of the of the organization,” says Horvat. “And in respect to the kind of position that he had, bringing the organization into disrepute left no choice but for the organization to determine that he couldn't be put back into the workplace.”
It's important to realize that employee misconduct that impacts the workplace is considered to be on-duty conduct, says Horvat.
“Such misconduct justifies a review on how it impacts other employees, the ability of the employee to do their job, and the reputation of the company - it doesn't have to be acted upon in every context, but it should at least be considered,” he says.
