Staffer pawned city-owned property
The offences kept piling up for former City of Windsor employee Brandon Denapoli.
Denapoli was dismissed on Sept. 14, 2012, after his employer discovered he aided and abetted a non-employee to gain access to secured city property, failed to report stolen keys which could be used to open secure city property, and replaced those keys without permission.
After firing Denapoli, the employer discovered he had stolen and pawned city property.
Main yard supervisor Tom Hansen testified the city received an anonymous tip on Jan. 4, 2013, that a city-owned weed-whip was advertised for sale by a pawn shop.
Hansen attended the pawn shop and inspected the weed-whip, identifying it as a city-owned tool based on its serial number and markings. He reported the information to his supervisor and the Windsor police department.
The employer planned to rely upon this subsequent evidence during arbitration as Denapoli grieved his dismissal. Denapoli’s union — the Canadian Union of Public Employees (CUPE) Local 82 — argued the employer had no right to do so.
While the weed-whip incident came to the employer’s attention in January 2013, the first time the union — or the grievor — was put on notice that the employer intended to rely on the allegation of theft at arbitration was on May 12, 2014.
The union suggested the employer decided in May 2014 to rely on the weed-whip incident only because it realized it could not establish just cause on the grounds it had originally relied on in discharging Denapoli.
Counsel for the union asserted the employer should not be allowed to bolster its case by adding new allegations not relied upon at the time of discharge.
The union argued the jurisdiction of the arbitration is limited to matters raised by the decision conveyed in the letter of discharge and the grievance filed in response to it, citing the Aerocide principle.
The Aerocide principle generally states that an employer cannot justify disciplining an employee on grounds that are different from those it gave when the penalty was actually imposed.
The employer, however, argued arbitrators often allow the addition of grounds that were "unknown and not easily discoverable at the time it effected the discipline."
After reviewing the case law, arbitrator Nimal Dissanayake concluded there is a well-established exception to the rule the employer must be held to the grounds it communicated at the time discipline was imposed.
According to Dissanayake, two conditions must be met in order for the exception to apply.
"First, the arbitrator must be satisfied that the additional grounds sought to be introduced at arbitration was not within the knowledge of the employer at the time it imposed the discipline being grieved, and further that the employer could not have reasonably discovered the additional grounds prior to its decision to discipline," Dissanayake said.
"Second, the arbitrator must be satisfied that permitting the introduction of the additional grounds does not result in procedural unfairness."
Dissanayake ruled it was clear the employer satisfied both conditions required in order for the exception to apply, ruling the employer is permitted to rely on the alleged theft of the weed-whip as additional grounds for the discharge of Denapoli.
