The grievor had committed a number of minor infractions at work. She refused to accept responsibility and blamed others, specifically her supervisor. The arbitrator found termination was too harsh a penalty, given there was no consistent discipline in the past, but he opted for severance rather than reinstatement because of the grievor's attitude.
A worker was fired after three incidents of misconduct persuaded the employer that her attitude was inconsistent with her continued employment.
The union grieved.
R.R. worked as a Custodian at a university. She had about 11 years’ service when she was fired on Oct. 8, 2009.
Difficulties in the employment relationship developed about two years prior to the termination.
Relations between R.R. and her supervisor were strained. The employer initially attempted to cite 13 or 14 incidents of misconduct as the basis for R.R.’s termination. However, because R.R. had not been disciplined for any of the previous incidents, an Arbitrator ruled that the employer could rely on only the three most recent incidents.
R.R. felt she was being persecuted. She retained a lawyer a number of months prior to the termination and arranged for an independent investigation of the relationship between herself and her supervisor.
Unfounded allegations
The report concluded that the supervisor had conducted herself in a fair and reasonable manner and had attempted to accommodate many of R.R.’s requests. The report concluded that R.R.’s allegations were unfounded.
The letter of termination said that R.R.’s behaviour had created an intolerable working environment because of her persistent challenges to her supervisor’s authority and her refusal to accept instruction.
One incident cited by the employer detailed R.R.’s repeated failure over the course of three days to lock the entrance to the campus law school building overnight.
Locking up the law school was a task R.R. had been assigned in order to cover for another Custodian who was away.
When R.R. began her shift on Monday, March 30, there was a note for her from the supervisor reminding her to lock a number of specific classrooms in the building.
The reminder was prompted because a number of weeks earlier R.R. had forgotten to lock some classrooms and there had been complaints.
Over the next three nights, R.R. locked the classrooms as directed. However, she did not lock the entrance to the building either on Tuesday or on Wednesday despite being advised by another Custodian — who arrived to find the building unlocked on Tuesday morning — that the building had not been secured.
R.R. was queried about these performance lapses. She said simply that she had only been directed to lock the classrooms.
R.R. was prompted to recall informal verbal instructions from her supervisor about locking the building. R.R. said it was not her problem if the supervisor was not doing her job properly.
A second incident played out a few months later concerning allegations made by R.R. about missing and/or misplaced supplies. The Arbitrator found that R.R. had again engaged in a deliberate attempt to embarrass and undermine her supervisor.
The union said that termination was not warranted. R.R. had 11 years’ service and there was no discipline on her record to that point. All the incidents added up might warrant some discipline, such as a short suspension, the union said, but the principles of progressive discipline and the weakness of the evidence against R.R. called for reinstatement in the circumstances.
The Arbitrator agreed, and disagreed.
Failure to impose discipline
The employer had not made a sufficient case for discharge. However, reinstatement was not appropriate.
R.R. was guilty of serious misconduct and discharge may have been appropriate had there been any previous record of discipline on R.R.’s record.
“Although I do not doubt that [the Supervisor] acted in good faith in attempting to correct the grievor’s behaviour without imposing discipline in the years prior to the three incidents at issue herein, in my view this failure to impose discipline in a corrective fashion precludes the employer from imposing discharge for all but the most egregious and harmful forms of misconduct.”
Nevertheless, it was unlikely that reinstatement would result in a viable employment relationship, the Arbitrator said.
The Arbitrator said that R.R.’s behaviour betrayed a “twisted view” of the workplace whereby she felt justified risking the university’s security, privacy and property if she could expose her boss as a “bad” supervisor.
The other key incident cited the by the employer was another attempt by R.R. to undermine the authority of her supervisors.
R.R. was also unrepentant. She accepted no responsibility for her wrongdoing and insisted on blaming her coworkers and supervisors for her problems, the Arbitrator said. “Her demeanour and attitude was one of stubbornness and complete lack of remorse.”
R.R. was awarded compensation in lieu of reinstatement.
