'A disciplinary process that may lead to termination of employment must be conducted fairly': arbitrator
An Air Canada worker who was dismissed for alleged time theft has been reinstated after an arbitrator found the company failed to accommodate his hearing impairment during the disciplinary process.
“When you have an issue of disability which is raised or you are deemed to have known about, you're going to have to show additional efforts to accommodate that disability, particularly during any disciplinary process,” says Lorenzo Lisi, leader of the Workplace Law Group at Aird and Berlis in Toronto.
The worker was an aircraft electrician for Air Canada since 2009, and in Montreal since 2021. He worked the night shift, from 8:45 p.m. to 7:55 a.m.
The worker was hearing impaired since birth, so he had difficulty communicating with others. His supervisor usually communicated with him by text message, including assigning him tasks.
The worker was efficient at performing his tasks and often finished before his colleagues. When he was needed for another task, the supervisor texted him and he showed up promptly.
Waited for assignments in car
At the beginning of the shift, there was a buffer period when sometimes there was a team meeting and employees got ready. Air Canada didn’t have any directive that employees had to wait for their tasks at any particular location and many employees waited in the cafeteria. The worker usually waited in his car, as he didn’t feel integrated with the team due to his disability.
On Aug. 7, 2023, the worker’s manager saw the worker enter the building about two hours before the start of his shift and then leave. About 30 minutes after the start of his shift, he saw the worker entering his workstation.
The manager checked the time card and building access records, which revealed that the worker had punched his time card two hours before his shift and left, returning 15 minutes after the start of his shift.
The next day, the manager checked again and saw that the worker had punched his card at 6:25 p.m. Five minutes after the start of the worker’s shift, he noticed the worker was absent. He checked the parking lot and didn’t see his car. Around 9:15 p.m., he observed the worker arriving and told him to attend a meeting.
The supervisor advised the worker that he had been caught stealing time on Aug. 7 and 8, and Air Canada would investigate to see if it had happened before. The worker provided no valid explanation but apologized and said he wouldn’t do it again.
Investigation
Air Canada investigated the records going back to May 24 and discovered 53 occasions when the worker either punched in before his shift while arriving late or left his workstation and then came back to punch out at the end of his shift. The total amount of time Air Canada believed the worker had stolen was 64.52 hours.
At a disciplinary meeting on Aug. 9, the worker admitted to following the same routine at the start and end of his shift since 2021. The worker provided several explanations, but Air Canada considered them contradictory and suspended him pending further investigation.
The worker’s colleagues and union representatives testified that they struggled to understand his speech during the disciplinary meetings. A union representative noted that he had “great difficulty understanding," the worker, adding that the worker’s responses - mostly "yes" and "no" – didn’t seem to reflect that he understood the situation.
The union asked for a sign language interpreter for the meetings, but Air Canada refused, saying that the worker had never requested an interpreter at work and the worker acknowledged that he understood the allegations. However, the worker later said he had developed reflexes such as nodding when he didn’t understand someone.
On Aug. 17, Air Canada gave the worker a termination letter stating that he failed to provide a satisfactory explanation for his conduct and he “received pay for dozens of hours during which you were not providing a work performance.”
Discriminatory discipline
The union grieved, arguing that Air Canada didn’t consider the worker’s explanations and the times from the punch cards only showed when he was on the premises. The worker didn’t receive any compensation greater than that from his scheduled hours, during which he was either working or waiting for a work assignment, said the union.
The union also alleged that Air Canada breached its obligation to accommodate the worker’s disability by refusing the services of a sign language interpreter during the disciplinary meetings, adding that the worker was unable to admit fault because he didn’t fully understand.
Air Canada claimed that when the worker arrived late or left early, he was paid for hours that he didn’t work. It further stated that the worker admitted to time theft during disciplinary meetings.
The arbitrator found that, while the worker committed a single instance of misconduct on Aug. 8, 2023, when he arrived 30 minutes late for his shift, Air Canada had not proven the broader allegations of premeditated time theft.
No evidence of dishonest intent
The arbitrator found that the evidence presented by Air Canada, including time cards and building access data, didn’t substantiate the allegations of a "fraudulent or dishonest intent" behind the alleged time theft. The arbitrator noted that the worker’s pay was aligned with his scheduled hours and there was no indication that the worker failed to perform his assigned duties or was unavailable during his scheduled hours, adding that Air Canada had no directive as to where employees had to be between assignments.
The arbitrator acknowledged that on August 8, the worker was late for his shift by approximately 30 minutes, constituting misconduct. For this, the arbitrator imposed a five-day suspension in place of dismissal.
“There's probably an argument to be made that any time theft is significantly serious to justify serious repercussions,” says Lisi. “Five days is a fairly significant suspension for somebody without a disciplinary record.”
The arbitrator determined that the worker was discriminated against during disciplinary proceedings due to Air Canada’s failure to provide adequate accommodation for his hearing impairment. The worker, who was “severely to profoundly deaf,” had difficulty understanding the proceedings and didn’t fully comprehend the allegations against him. While Air Canada argued that the worker had not previously required a sign language interpreter, the arbitrator determined that the complexity of the disciplinary meetings warranted such an accommodation.
Lack of accommodation
The arbitrator found that the worker’s apparent admission of guilt, which Air Canada cited as part of the justification for dismissal, was not "clear, free and voluntary." The worker’s limited communication abilities and lack of proper accommodation deprived him of the opportunity to adequately defend himself, said the arbitrator.
“The arbitrator said that the investigation itself was flawed because of the failure to accommodate - the inference is, although they don't say it, is that [Air Canada] should have had constructive knowledge of the fact that the worker didn't understand what was going on from the front end and required accommodation, and then the union underscored that by saying ‘We need an interpreter,’” says Lisi.
Air Canada was ordered to reinstate the worker with all lost wages and benefits restored, minus the five-day suspension. The company was also directed to pay the worker $5,000 in moral damages and $10,000 in special compensation under the Canadian Human Rights Act for its failure to accommodate during the disciplinary process.
It's a large award that’s intended to show that the discriminatory effects on the worker were significant, says Lisi.
“The refusal to adopt a reasonable accommodation significantly harmed the worker,” he says. “But I also think, to be fair to Air Canada, that this was something where nobody had raised an issue before about the worker’s ability to understand - but as the evidence came out, it undermined their position.”
Fair disciplinary process
The arbitrator emphasized that "a disciplinary process that may lead to termination of employment must be conducted fairly” and the worker was deprived of "effective communication" during critical stages of the investigation.
“The worker didn't understand the content of the accusations due to discrimination at the disciplinary meetings and [Air Canada] should have taken the time to verify the alerts issued by the union,” says Lisi. “What they should have done was start over by providing him with an interpreter, asking all the same questions and finding out where they were at, in order to make sure that the process was fair - and that's a hard thing to do when accommodation has never been requested with respect to his employment in the past.”
“When the issue of accommodation is raised during an investigation, the employer needs to stop and look at what process could be invoked, what it needs to do differently, or what it needs to ask,” adds Lisi. “And an arbitrator will be more predisposed to reinstate an employee with a lengthy service record, particularly in the case of someone who required accommodation.”
