Management in on misconduct, so discipline for Ontario linemen in Cayman Islands reduced

The presence of management when a serious company infraction is committed reduces the responsibility of employees who took part in it, says arbitrator

The presence of management when a serious company infraction is committed reduces the responsibility of employees who took part in it, the Ontario Arbitration Board has ruled.

Harry Bremner was a supervising lineman and Tom Curran a lineman in a crew sent to the Cayman Islands by FortisOntario in late 2004 to repair damage caused by Hurricane Ivan.

The crew worked six days a week, for up to 12 hours a day, under Ken McAllister, a member of management. After work on Friday, Nov. 5, several employees, including Bremner, Curran and McAllister, had dinner and drinks at a bar-restaurant located about 15 minutes from their hotel. They stayed for about four hours.

FortisOntario considered that while the work trucks and equipment were in the parking lot, and the men in their work clothes, they were still on duty. It said the matter was a serious disciplinary infraction that exposed the expensive vehicles to damage and jeopardized the company’s reputation.

It took the following mitigating factors into account in not terminating their employment:

•the presence of a supervisor who participated in the misconduct;

•that the workers were working long hours under difficult circumstances;

•that everyone involved had admitted their wrongdoing; and

•the good disciplinary records of everyone involved.

Bremner was suspended without pay for 10 days and demoted and Curran was suspended for five days. (McAllister was also demoted. He was not a grievor in this case.)

The union appealed the punishment. It argued there was no cause for discipline: there were no breach of safety rules, and the men had merely stopped after work for dinner and drinks.

The arbitrator agreed with the company that this was not a trivial incident. Though ultimately nothing happened, there was a reasonable risk of loss to the company, it found.

But the misconduct of the crew members was greatly diminished by the presence of McAllister. With a member of management present there was tacit approval of what occurred. The employees’ individual duty to take action was diluted by their supervisor allowing it, the board said. This is especially so in the case of Curran, who was not in authority. The board reduced his suspension from five days to one.

However, Bremner, who otherwise had a virtually clean disciplinary record in his 30 years with the company, was found to have more responsibility. The board ruled he was not incompetent or unsuitable to be a supervising lineman.

A three-month demotion would serve the purpose of correcting his behaviour, said the board.

For more information see:

FortisOntario v. I.B.E.W., Local 636, 2005 CarswellOnt 7344 (Ont. Arb. Bd.)

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