Arbitrators have the power to reinstate a terminated unionized worker. Employers can avoid this by proceeding with caution and building a case that will stand up to an arbitrator's scrutiny
A lot of things come back. The cat, boomerangs and annoying in-laws, to name a few. But what employers don’t expect to return to the company payroll is a problematic worker fired for cause. After all, most employers don’t take the extreme step of terminating the employment relationship unless there’s a pretty good reason.
But in a unionized setting, a worker fired for cause can come back. Arbitrators across Canada have the power to overturn the employer’s decision and reinstate the worker. And they won’t hesitate to do so in cases where the employer did not have compelling, documented and sound reasons to fire the worker.
And that can lead to some pretty awkward situations. A manager at a production facility who did not want to be identified told Canadian HR Reporter of the problems created for him when a worker he personally fired won his job back.
“It really was a nightmare,” he said. “We really thought we had reason to get rid of this guy. But someone thought otherwise, and now he’s back.”
He said he was “stunned” when he was told the worker would be returning. He even panicked a bit because he was concerned about how other workers would view the firing.
“Would they think they could do whatever they wanted and we couldn’t fire them? That was a real concern,” he said. “It left us with a pretty good black eye.”
He also said there was a bit of a split in the workplace, and some workers who thought the company was justified in firing this person felt a little demoralized to have to work with him again. It has been a couple of years since the worker returned, but there are still awkward moments at the plant, he said.
“But, to be honest, he’s been a good worker, almost a model worker, since he came back,” he said. “But it’s been a rough ride. It’s made us very careful about how we handle problems.”
Being awarded a job back is no picnic for the worker either. A manufacturing worker who was reinstated told Canadian HR Reporter he was really scared about the first day back.
“It was terrifying, the thought of going back. But they had no reason to do what they did, and the union was very supportive,” he said. “But I like my job. It’s a good job, and I work hard and the pay is good. I did make a mistake, but they didn’t give me a chance. But the union stood up for me.”
He said he doesn’t see the manager who fired him very often, because they’re now in different departments, but they rarely make eye contact when they do run into each other.
“That part still bothers me, because most people get along here,” he said. “But what can I do?”
Matthew Certosimo, a lawyer with Borden Ladner Gervais in Toronto and author of several books, including Dismissals in the Unionized Workplace, published by Carswell, said there are a few simple rules employers should follow to avoid ending up in this awkward situation.
The first thing to remember is to act with haste, but not hastily.
“When an employee has apparently been involved in some form of misconduct, it’s crucial to engage as quickly as possible in a thorough investigation,” said Certosimo. “Approach these things with an appropriate degree of professionalism and immediately invoke a careful investigation within the bounds of the collective agreement.”
Many agreements spell out how investigations are to proceed, including union-related protections for anyone involved in the investigation.
Using the example of an employee accused of theft, he said it’s critical to line up the evidence and witnesses and get a grip on all the surrounding circumstances as quickly as possible. Employers also need to take into account the same things arbitrators do, including factors that might mitigate a dismissal such as the length of service and the worker’s previous disciplinary history.
“Or maybe the employee has some form of addiction, and there’s going to be some argument that their conduct was entirely out of character and more as a result of their addiction rather than their trustworthiness,” he said.
Employers that act too hastily without taking these kinds of things into account are the ones that run into trouble if the termination is grieved by the union. Common sense may dictate that the employee should be fired if, for example, he is caught red-handed with stolen company property.
“But when we get to arbitration, the arbitrator is going to be far less concerned with common sense and far more concerned with evidence,” he said. “And by then, whether it’s several months or a year later, it will be much harder to prove your case if you haven’t done a good job in securing and preserving the evidence.”
Certosimo recalls a theft case he was involved in where a great investigation helped the employer tremendously. A security guard was sitting in a van watching a store and saw an employee engaged in theft. He was pretty sure he knew who the person was but he immediately wrote down a description.
“One of the things he wrote down was that the person was wearing a red shirt,” he said. “Immediately after, he went into the store and interviewed all the employees and noted that only one of them had a red shirt.”
The arbitrator was impressed by the detail and the immediate investigation. The red shirt became a crucial fact in ultimately upholding the discharge, said Certosimo.
Bill Gale, a partner with Grosman, Grosman and Gale in Toronto, said many employers set themselves up to fail at arbitration from day one. That’s because they don’t communicate effectively with employees.
“The key is clear, written communication to the employee of the expectations in the role and the consequences if the employee doesn’t deliver,” said Gale.
Implementing and following a progressive discipline scheme is also important. There are rarely good reasons to circumvent such a policy.
But in a unionized setting, a worker fired for cause can come back. Arbitrators across Canada have the power to overturn the employer’s decision and reinstate the worker. And they won’t hesitate to do so in cases where the employer did not have compelling, documented and sound reasons to fire the worker.
And that can lead to some pretty awkward situations. A manager at a production facility who did not want to be identified told Canadian HR Reporter of the problems created for him when a worker he personally fired won his job back.
“It really was a nightmare,” he said. “We really thought we had reason to get rid of this guy. But someone thought otherwise, and now he’s back.”
He said he was “stunned” when he was told the worker would be returning. He even panicked a bit because he was concerned about how other workers would view the firing.
“Would they think they could do whatever they wanted and we couldn’t fire them? That was a real concern,” he said. “It left us with a pretty good black eye.”
He also said there was a bit of a split in the workplace, and some workers who thought the company was justified in firing this person felt a little demoralized to have to work with him again. It has been a couple of years since the worker returned, but there are still awkward moments at the plant, he said.
“But, to be honest, he’s been a good worker, almost a model worker, since he came back,” he said. “But it’s been a rough ride. It’s made us very careful about how we handle problems.”
Being awarded a job back is no picnic for the worker either. A manufacturing worker who was reinstated told Canadian HR Reporter he was really scared about the first day back.
“It was terrifying, the thought of going back. But they had no reason to do what they did, and the union was very supportive,” he said. “But I like my job. It’s a good job, and I work hard and the pay is good. I did make a mistake, but they didn’t give me a chance. But the union stood up for me.”
He said he doesn’t see the manager who fired him very often, because they’re now in different departments, but they rarely make eye contact when they do run into each other.
“That part still bothers me, because most people get along here,” he said. “But what can I do?”
Matthew Certosimo, a lawyer with Borden Ladner Gervais in Toronto and author of several books, including Dismissals in the Unionized Workplace, published by Carswell, said there are a few simple rules employers should follow to avoid ending up in this awkward situation.
The first thing to remember is to act with haste, but not hastily.
“When an employee has apparently been involved in some form of misconduct, it’s crucial to engage as quickly as possible in a thorough investigation,” said Certosimo. “Approach these things with an appropriate degree of professionalism and immediately invoke a careful investigation within the bounds of the collective agreement.”
Many agreements spell out how investigations are to proceed, including union-related protections for anyone involved in the investigation.
Using the example of an employee accused of theft, he said it’s critical to line up the evidence and witnesses and get a grip on all the surrounding circumstances as quickly as possible. Employers also need to take into account the same things arbitrators do, including factors that might mitigate a dismissal such as the length of service and the worker’s previous disciplinary history.
“Or maybe the employee has some form of addiction, and there’s going to be some argument that their conduct was entirely out of character and more as a result of their addiction rather than their trustworthiness,” he said.
Employers that act too hastily without taking these kinds of things into account are the ones that run into trouble if the termination is grieved by the union. Common sense may dictate that the employee should be fired if, for example, he is caught red-handed with stolen company property.
“But when we get to arbitration, the arbitrator is going to be far less concerned with common sense and far more concerned with evidence,” he said. “And by then, whether it’s several months or a year later, it will be much harder to prove your case if you haven’t done a good job in securing and preserving the evidence.”
Certosimo recalls a theft case he was involved in where a great investigation helped the employer tremendously. A security guard was sitting in a van watching a store and saw an employee engaged in theft. He was pretty sure he knew who the person was but he immediately wrote down a description.
“One of the things he wrote down was that the person was wearing a red shirt,” he said. “Immediately after, he went into the store and interviewed all the employees and noted that only one of them had a red shirt.”
The arbitrator was impressed by the detail and the immediate investigation. The red shirt became a crucial fact in ultimately upholding the discharge, said Certosimo.
Bill Gale, a partner with Grosman, Grosman and Gale in Toronto, said many employers set themselves up to fail at arbitration from day one. That’s because they don’t communicate effectively with employees.
“The key is clear, written communication to the employee of the expectations in the role and the consequences if the employee doesn’t deliver,” said Gale.
Implementing and following a progressive discipline scheme is also important. There are rarely good reasons to circumvent such a policy.
