Arrested for breaching no-contact with spouse
After he was arrested for “breach of a restraining order,” a Winnipeg firefighter was sent to jail and was therefore unable to attend work.
The firefighter — identified as “C.G.” — was first arrested on July 28, 2015. He and his spouse separated in July 2014, and a no-contact order was issued in July 2015.
The 50-year-old employee had worked with the Winnipeg Fire and Paramedic Service (WFPS) as a first-class firefighter/primary care paramedic and he was first hired in 2007.
When C.G. was arrested, he was on an annual leave. C.G. eventually returned to work on Sept. 23, on a temporary assignment, after a meeting with the employer in which all the details about his incarceration were shared.
But on Nov. 9, C.G. was again arrested. His lawyer immediately informed the WFPS of his arrest and she shared her opinion that C.G. would not be released on bail and, therefore, he was unable to attend future scheduled shifts.
On Nov. 29, C.G. was placed on an unpaid leave of absence, as he had already used up his annual- and sick-leave credits.
On Dec. 29, an HR consultant sent a letter to C.G.’s home address that read: “You have been absent from work without contact since your arrest on Nov. 9, 2015, which has placed your ongoing employment status with the
City of Winnipeg in question. Please be advised that the service requires verification of the court proceedings stemming from your arrest and your expected return-to-work date.”
In the letter, C.G. was warned that if a reply wasn’t received by Jan. 15, 2016, his employment status could be in jeopardy.
As he was in jail, C.G. did not see the letter, said the union, the United Fire Fighters of Winnipeg (UFFW), Local 867. On March 14, 2016, C.G.’s lawyer provided a full update on his charges, expected trial dates, and advised the employer that C.G. requested to be placed in a general leave until his legal issues were resolved.
A disciplinary hearing on Nov. 10 recommended C.G. be terminated. The recommendation was accepted and on Feb. 1, 2017, the employer’s chief corporate services officer ruled that C.G. should be dismissed due to “ongoing unavailability for work due to incarceration (which) is not a valid reason for being absent from work and, as such, it is necessary to terminate your employment.”
The WFPS argued, via the HR consultant at the hearing, that it would have had to pay less in overtime had C.G. been able to work and this constituted a hardship. The consultant said about 150 overtime shifts were paid out during his incarceration.
C.G. was eventually released from prison on Oct. 29. Overall, he spent about two years in jail.
The union grieved the decision and argued the employer did not fully consider C.G.’s circumstances — nor his continued willingness to provide full information — when it opted for the firing.
Arbitrator Colin Robinson agreed and ordered WFPS to reinstate C.G. “While I accept that (C.G.) was absent for an extensive period of time, and that his return to work remained uncertain at the time of the termination, I have determined that, in balancing the interests of the parties, the scales tip decidedly in favour of (C.G.’s) interest in continuing his employment.”
“(C.G.) did not attempt to conceal the fact that he had been charged with offences. He retained counsel and instructed her to provide information regarding his charges to the union and the employer, and to answer any questions they had, which offer was not taken up by the employer,” said Robinson.
The employer’s argument about the hardship due to excessive overtime, was dismissed by the arbitrator. “There is no evidence that (C.G.’s) absence caused the employer to have to utilize employees on overtime. As the employer’s witness acknowledged, overtime usage may result from any number of factors. It is pure conjecture to somehow link the employer’s use of overtime during that period to (C.G.’s) absence,” said Robinson.
Reference: Winnipeg Fire and United Fire Fighters of Winnipeg, Local 867. Colin Robinson — arbitrator. John Jacobs for the employer. Garth Smorang for the employee. March 15, 2018.
