Suspension based on discipline, not discrimination: Arbitrator
Phil Edwards — suspended by the City of Toronto for payroll irregularities and issues of performance and insubordination — filed grievances against his employer alleging the city engaged in a pattern of discriminatory and harassing behaviour towards him.
Through his union, the Canadian Union of Public Employees (CUPE) Local 79, Edwards grieved both the imposition of a 10-day suspension on April 16, 2012, as well as his notice of transfer to a new community centre, which took place eight days later.
On March 30, 2012, Edwards — a community recreational programmer with Oakdale Community Centre — met with management to discuss a number of performance issues and payroll irregularities.
Of particular concern to the employer was the fact that, on several occasions, Edwards instructed another employee to pay program costs using her own money. Edwards told the employee he would reimburse the costs by giving her additional hours in the employer’s payroll system. He was placed on a paid leave of absence while the employer conducted an investigation.
On April 16, the employer issued a 10-day suspension. On April 24, Edwards was notified he would be transferred from his current position at the Oakdale Community Centre to the O’Connor Community Centre. At the time, Edwards had no disciplinary record.
According to the union, the 10-day suspension was without cause or, at a minimum, excessive. The union argued several misdemeanours the employer failed to previously address were suddenly piled on to justify the severity of a suspension. Furthermore, the union submitted the transfer was disciplinary, unreasonable and discriminatory.
Edwards took the position that the suspension and transfer amounted to discrimination and harassment, arguing this treatment was on the basis of race and colour. Edwards is a black man and he submitted that was a factor in his treatment by the employer.
The employer, however, argued aspects of Edwards’ actions amounted to misconduct bordering on fraud. His transfer was well within the rights of administrative action and had been motivated by nothing more than the desire to provide employees with a range of work and mentorship opportunities.
The allegation of racial discrimination was characterized by the employer as hurtful, preposterous and, ultimately, indicative of Edwards’ lack of credibility and judgment.
Not entirely credible
Arbitrator Dana Randall agreed Edwards was not an entirely credible witness, saying, "I have no difficulty finding that the grievor’s own evidence, with respect to many of the allegations against him, is suspect. He is poor at taking responsibility for his own shortcomings and quick to blame others… he changed his position so many times in order to rebut the mounting evidence marshalled against him by the employer that he lost a great deal of credibility."
Data from the employer’s payroll system proves Edwards submitted undocumented hours for his fellow employee. There were a total of 15 such hours for which the employee was paid, which she neither worked nor claimed.
Because of the evidence and because of Edwards’ "cavalier" attitude to the payroll system, Randall sustained the 10-day suspension.
However, Randall also found evidence that the employer’s decision to transfer Edwards was a "direct result" of the same investigation that led to his suspension.
"The grievor’s misconduct had to be corrected and transferring him to O’Connor… was part of the employer’s response," Randall added.
Finally, Randall did not find any evidence supporting a finding that Edwards was treated differently by the employer because of his race or colour and so the allegations of discrimination based on race and colour were dismissed.
Reference: City of Toronto and the Canadian Union of Public Employees Local 79. Dana Randall — arbitrator. Amandi Esonwanne for the employer, Douglas Wray for the union. Nov. 25, 2014.
