Fired for alleged off-duty misconduct, a union official was ordered reinstated when the arbitrator ruled that the conduct in question had no bearing on the employment relationship.
G.H., a welder with 31 years’ seniority and a long-time union official who acted as the union’s Equity Officer, was fired for dishonesty in contravention of Plant Rules and for alleged obstruction of justice.
In his role as Equity Officer, G.H. was present at a meeting convened by the provincial Human Rights Tribunal to mediate a union member’s human rights complaint. Following that meeting, it was alleged that the company’s vice-president of Human Resources threatened the complainant with bodily harm. A complaint was laid and the police charged the VP with threatening bodily harm.
Cash makes charges go away
While testimony as to the details differed, it was established that some three months following the incident, G.H. telephoned the VP with the first of three offers to make both the criminal charge and the human rights complaint “go away” in exchange for a cash settlement.
The settlement offers were refused. The human rights complaint was dismissed, and the VP was found not guilty. Nevertheless, G.H. was fired. The termination letter alleged that he had been involved in the laying of the criminal charge in an apparent gambit to “illegally attempt to obtain funds from the company to have the criminal charges withdrawn.” Termination was warranted because G.H.’s conduct had irreparably damaged the employment relationship, the letter said.
The union grieved. There was no evidence to link G.H. to the laying of the criminal charge. And, in trying to combine the criminal matter and the human rights complaint in a single settlement, G.H. was not acting unreasonably and had committed no crime or misconduct, the union said. G.H. sought no personal benefit for himself. He may have lacked sophistication in handling the matter but that did not make it a crime. Moreover, even if G.H was guilty of misconduct, the employer had failed to take into account his long service, the absence of a disciplinary record, the lack of intent, the fact that is was an isolated incident and that he was acting as a union representative.
The key question, the Arbitrator said, was not whether G.H’s conduct was a breach of the Criminal Code, but whether or not his alleged conduct destroyed or detrimentally affected the employment relationship.
“No duty to the employer”
In the first place, the impugned conduct took place off hours while G.H. was conducting union business, the Arbitrator said. “Secondly, and more substantively, the conduct in question had nothing to do with his employment or his work as a welder, and everything to do with his representation of a former union member, in respect of which he owed no duty to the employer.”
In this case, G.H.’s alleged off-duty conduct did not cross the threshold to justify discipline within the context of the employment relationship, the Arbitrator said.
G.H’s actions did not harm the company’s reputation or product or render him unable to perform his duties. He had not been found guilty of a serious breach of the Criminal Code so as to damage the company’s reputation or behaved in such a way that other employees would refuse to work with him. Nor did his behaviour in any way impede the company’s ability to efficiently manage it works or direct its employees.
“I am unable to conclude that [G.H’s] conduct, even if one accepts that it was criminal, dishonest or manipulative, comes within these criteria. The most that could be said is that his conduct would likely make it impossible for him to perform his duties as a union representative satisfactorily. While I can understand the employer’s concern in this regard, my inquiry has to be whether the employment relationship has been detrimentally affected and not whether [G.H.’s] effectiveness as a union representative has been detrimentally affected. Whether he can continue as a representative is a call for the union to make, not the employer.” G.H. was ordered reinstated.
