The arbitrator agreed with the union that firing the grievor by registered mail denied him union representation and was null and void. However, in “refiring” him a few days later, the grievor’s case was not prejudiced. The termination held.
A worker grieved after he was terminated by registered mail. The union said the termination was null and void because the employer breached the worker’s collective agreement right to have a union steward present when discipline was issued.
E.B. was employed as an operator at a grain elevator. He was required to monitor conditions inside the storage bins and act to prevent loss and spoilage. E.B. was also responsible for loading grain onto ships, trucks and rail cars.
In December 2010, the employer learned that the contents of a bin had spoiled. The dollar value of the loss was in excess of $50,000.
The employer conducted an investigation. E.B. was interviewed about the incident at a meeting on December 15. Along with E.B., a union steward attended. The plant supervisor and company president represented the employer. At the conclusion of the meeting, E.B. was suspended pending further investigation. The union grieved the suspension.
Termination by mail
The next day, management determined that E.B. was responsible for the loss. The decision was made to terminate E.B. A letter was prepared to that effect and sent via registered mail. On December 20, the union grieved the termination claiming that the employer had violated E.B.’s collective agreement rights by disciplining him without union representation present.
A grievance meeting was held on December 23. The union argued that the employer’s violation of E.B.’s contract rights rendered the termination null and void.
The employer said that a meeting was not necessary in order to effect the termination. However, even if the termination letter of December 16 was in breach of E.B.’s contract rights, he was informed of the termination at the meeting on December 23 in the presence of a union representative. The employer said that even if a breach of E.B.’s contract rights resulted in reinstatement, the employer reserved the right to re-terminate E.B.
Decisions vary on whether or not an employer can discipline an employee a second time for the same alleged misconduct, the Arbitrator said.
The view that an employer may not revisit discipline is based on the concept that the prejudice flowing from a disciplinary decision made in the absence of union representation is irreparable and incapable of being resurrected and/or restructured by the company into some other disciplinary response, the Arbitrator said.
Numerous decisions have held that the denial of the right to union representation is so important to a worker’s rights and to good labour relations that the employer should not be permitted to finesse these rights simply by being able to repeat a termination later in the presence of a union steward.
Prejudice not inevitable
However, the Arbitrator said, a line of argument also holds that the failure to provide union representation may be explicable for valid reasons and it may be that an employee suffers no resulting prejudice at all.
That was the case here.
“[B]y reinstituting the termination on December 23, [E.B.] was then in essentially the same position that he would have been in, had the Employer given him the December 16 termination letter at the meeting conducted with a Union Steward or Unit Chairperson present, instead of sending him the letter via registered mail. In that respect, [E.B.] would be in the same position of attempting to convince the Employer that its decision to terminate him was without just cause, or was too severe a penalty. As I understand it, the Union did not maintain that the representation present at the December 23 grievance meeting contravened the required Union representation in [the collective agreement]. Additionally, I find that the foregoing circumstances do not demonstrate sufficient prejudice that would preclude the Employer from reinstituting the termination on December 23.”
The December 16 termination was null and void, the Arbitrator said, but the Employer had the collective agreement right to fire E.B. at the December 23 grievance meeting.
