Repeat offender's termination stands, judge rules
The circumstantial evidence in Grayson Crowley’s dismissal was enough to warrant termination, an arbitrator ruled. Crowley, a driver for Innocon, was fired on April 10, 2013. As a driver, Crowley worked out of the Toronto company’s Mavis Road mixing plant, driving a cement truck to customer sites. Drivers typically run a number of deliveries every day and for this reason maintain ongoing communications with dispatch.
On April 9, 2013, Crowley was scheduled to work at 8 a.m. When he arrived at the garage Crowley was told by one of the company’s mechanics his truck was off the road for servicing and Crowley would be required to drive another truck for the day.
The grievor left the plant and drove his own vehicle to a nearby Tim Horton’s. He used his cell phone to call dispatch and tell them he felt sick and would not be in that day. Crowley testified he was ill on the day of the incident, saying, "I do not know what was wrong, I just wasn’t feeling right."
Previous discipline
The Mavis Road plant manager received an email from dispatch detailing Crowley’s call and explaining the grievor often called in sick when his truck was off road. The plant manager, who had recently started in the position at the time of the incident, reviewed the grievor’s disciplinary files. In 2011 Crowley received a one-day suspension for time theft and in 2012 he received a three-day suspension for violations of the collective agreement regarding sick days.
The day after the April 9, 2013, incident, Crowley met with his manager and a union representative. The greivor was asked about the incident and he replied he had been sick and unable to work the previous day. Crowley was fired and given a termination letter that described his discipline history, calling his recent performance "unacceptable."
When asked about the symptoms he experienced on April 9, the grievor could not remember anything specific. When asked to describe how he felt on the day of the incident Crowley said, "I don’t know."
The company referenced several other instances — including incidents in May 2012 and February 2013 — in which the grievor had suddenly made excuses to leave work after learning his truck was off-road for servicing.
The Teamsters union Local 230 argued Crowley was dismissed without just cause and asked he be reinstated and fully compensated for his losses.
In response to the company’s allegation he lied about being ill on April 9, 2013, Crowley testified he believed the company had it out for him.
"Ever since I turned 65 the company has been on my back so I am not surprised," the 71-year-old said.
Circumstantial evidence
Sole arbitrator Diane L. Gee agreed the evidence in support of the company’s allegations Crowley booked off sick when he was in fact fit to work was circumstantial. While the company lacked any direct evidence Crowley was not ill on April 9, 2013, Gee said she found the grievor’s inability to remember the details of the incident to be troubling.
"His testimony lasted approximately one hour," Gee stated in her ruling. "Notwithstanding the relative brevity of Mr. Crowley’s testimony, it contained within it a number of inconsistencies on rather significant points."
In addition to being unable to remember his symptoms on the day of the incident, the grievor was also unable to recall when he made the decision to call in sick, changing his mind several times.
She concluded the grievor was not a credible witness. More importantly, Gee said, from his lack of honesty she could infer Crowley was not sick on the day of the incident.
Crowley never acknowledged his wrongdoing or expressed remorse, Gee ruled. He had accumulated five prior disciplinary penalties and his misconduct was intentional and premeditated. Gee ruled his termination was appropriate and declined to substitute a lesser penalty.
Reference: Innocon Inc. and Teamsters Local Union 230. Sole arbitrator — Diane L. Gee. David L. W. Francis for the Employer. David Watson for the Union. Oct. 9, 2013.
