The company was trying to tighten up its employee discount policy to avoid complaints from dealers. The grievor continued to abuse the privilege, but his long service, his age and his contrition tipped the scales in his favour.
Fired for abusing the employee discount program, a worker with 39 years’ service grieved the termination.
N.M. was a teenager when he began working for a manufacturer and distributor of heating and air conditioning equipment.
A qualified Heating, Ventilating and Air Conditioning (HVAC) installer, N.M. worked at the company’s distribution centre where he modified equipment for customers.
As a manufacturer of HVAC equipment, the employer also supported a dealer network. Company policy prohibited employees from competing with its dealer network. The company also placed a high value on the integrity of its business practices and compliance with its Code of Conduct. Employees were trained accordingly.
Until January 2008, the company provided an employee discount program. Under the program, furnaces, air conditioners and related equipment could be purchased at a discount if they were for installation in an employee’s home or in the home of someone related to an employee. These discounted purchases were limited to one per year.
However, it was discovered that some employees were abusing the plan. Equipment was being purchased at a discount, resold and then installed in the homes of people who were not related. Workers were fired and the program was revamped.
New program
The new program provided for a post-purchase rebate to employees for equipment purchased either for them or for their relatives. The purchases had to be made through, and installed by, a dealer. There were no limits on the number of purchases per year but the rebate for relatives was now less than the rebate for employees or retirees. However, the 25 per cent employee discount on replacement parts, supplies and accessories for personal use was continued.
The employer’s discovery in June 2010 that one of its order takers had been misusing the new program led it to investigate a number of purchases made by N.M.
The employer questioned N.M. in July. Asked about one purchase involving a number of replacement parts, N.M. first said that they had been purchased for his sister-in-law’s house. The fact that the parts discount was available only to employees for personal use concerned the employer. The employer also became concerned because N.M. changed his story during the interview.
There were a number of other questionable transactions. He returned an empty cylinder of refrigerant and received a credit for the $80 deposit. There was nothing wrong with that except that he would have no need for refrigerant unless he was involved in installations and, therefore, in competition with the employer’s dealer network. N.M. was questioned about the cylinder’s logbook, which is a legal requirement put in place to track refrigerant usage. It was lost, he said.
In a number of other cases, it was shown that he had violated the policy by availing himself of the 25 per cent employee parts discount for non-personal purchases.
Friend of a friend
In another case, he purchased a furnace and an air conditioner worth more $1,500 for a friend of a friend. That purchase came at a 25 per cent discount.
N.M. was called to another meeting to discuss the purchases. N.M. was initially hostile and insistent that he had done nothing wrong. However, his demeanour changed over the course of the meeting as it was explained why what he did was wrong. He apologized and said that he had been wrong. N.M. was suspended. Five days later he was fired.
Termination was the only option the employer said. N.M.’s actions constituted a breach of trust that violated company standards of integrity and the Code of Conduct.
The union agreed that N.M.’s conduct was cause for significant discipline but argued that — at 58 years old and with 39 years of service — the termination should be substituted with a “time-served” suspension without pay.
The Arbitrator agreed. “Termination in these circumstances is very much more punitive than it would be for a younger worker. The grievor’s long service entitles him to every consideration in assessing whether he and his employment [with the company] can be rehabilitated through discipline short of discharge.”
A key mitigating factor was that N.M. was not seeking to profit personally from finessing the rebate system, the Arbitrator said. This did not excuse the wrongdoing, but it was a relevant factor in determining whether or not the relationship could be rehabilitated.
As well, N. M. was contrite. Despite his initial hostility in the interview, N.M. came around. He acknowledged his wrongdoing and apologized. While an apology that exhibited a little more clarity about what exactly he had done wrong might have been desirable, it was good enough, the Arbitrator said. “An expression of remorse need not be abject to qualify as genuine.”
The termination was substituted with a time-served suspension amounting to six months without pay. The suspension was to remain on N.M.’s record for three years and N.M was ordered to reimburse the employer for the improper discounts.
