Second chance wasted

An Ontario employee deserved a second chance after getting fired for insolent behaviour towards his company’s executives but failed to live up to the terms of it, an arbitrator has ruled.

C. Boogerman was a counsellor for Community Living Meaford (CLM) in Meaford, Ont. He was hired in April 2004. In February 2011, the union took exception to documents and a related discrepancy regarding the Family Day holiday.

On Feb. 28, Boogerman sent an email to employees in his bargaining unit with an attached letter from the union representative to CLM’s manager of business and finance. Boogerman’s email called the finance manager a “devious, untrustworthy person” who needed to be fired. He also accused the finance manager of stealing, short-changing and underpaying employees.

Nine days later, CLM held an investigatory meeting with Boogerman and the executive director asked him why he circulated the email. He also stated the discrepancy had been checked out, the finance manager had rectified it immediately and CLM considered the matter resolved. Boogerman was warned it was not the appropriate way to address such errors and not to make such statements again or else he would face discipline.

Boogerman responded by saying “bring it on” and the executive director told him he needed to conduct himself professionally or else there would be repercussions. There was no further discipline.

Employee made accusations against finance manager

On Jan. 31, 2012, Boogerman attended a grievance meeting with another union representative to deal with an unrelated issue. However, before they got to the grievance agenda, Boogerman began making accusations against the same finance manager, alleging the manager had committed fraud and stolen funds from CLM. He was immediately told to stop or face discipline as the accusations had nothing to do with the grievance meeting, nor were they true. Boogerman again said “bring it on.” At that point, Boogerman was told to bring any fraud concerns to the police.

CLM did not issue discipline for Boogerman’s conduct as it believed the union and Boogerman understood the severity of his allegations and he would stop.

In August 2012, a union secretary sent an email to the finance manager, copying other union representatives including Boogerman. The email was regarding an invoice for direct negotiations with the employer — that should be employer-paid — with an incorrect date and charges.

Boogerman sent an email to the finance manager and copied others using profane language and accusing the finance manager of “trying to screw either the union itself, or individual union members, out of money.” He also hinted about telling members of the manger’s church about his “unChristianlike activities,” suggested retirement and referred to the executive director and the finance manager in derisive terms.

Boogerman later testified he was trying to goad the executive director into disciplining him so he could shed light on what he felt was a toxic workplace in front of a neutral arbitrator. A meeting was scheduled for Oct. 30 but, before then, Boogerman sent an email to the executive director stating he hoped he would represent an employee in a grievance against him and and called him “Jeffy boy.” Boogerman testified the tone and language of this email was inappropriate but he was trying to get a reaction.

On Oct. 30, Boogerman and other employees were at a first aid training session. They heard an ambulance siren and when someone wondered what was going on, Boogerman said maybe the finance manager was having a heart attack.

A meeting was held where Boogerman’s emails and comments were discussed. Boogerman was asked if he had the right to make “personal and insolent comments” about the finance manager. He replied yes, “if it was warranted.” When asked if he would do it again, Boogerman also responded in the affirmative. Boogerman didn’t express regret and refused to write letters of apology to the finance manager and the executive director.

On Nov. 5, 2012, CLM terminated Boogerman’s employment for “significant and unacceptable misconduct.”

The arbitrator accepted that Boogerman “engaged in culpable misconduct deserving of some discipline” with insolent comments directed at the finance manager and the executive director through emails sent to several people. However, the comments at the first aid session were not on the same level as it was not the same as saying he wished the finance manager was having a heart attack, said the arbitrator.

The arbitrator acknowledged Boogerman admitted he used derisive names for CLM executives in his emails and he was trying to get disciplined as his issues arose from disagreements about how the collective agreement should be administered. However, he miscalculated how seriously CLM would take his misconduct and the employer terminated him rather than use lesser discipline.

The arbitrator found CLM didn’t follow a progressive discipline route and didn’t warn Boogerman his employment was in jeopardy. The first couple of incidents resulted in a verbal warning but no official discipline, and he was only warned of future discipline, not termination, said the arbitrator.

“There is no doubt the employer effectively advised Mr. Boogerman of some potential disciplinary consequences, should his misconduct persist,” said the arbitrator. “However, before the discharge, the employer did not make it clear to Mr. Boogerman in sufficiently precise terms that if he engaged in similar future behaviour, he would potentially face a disciplinary response up to and including discharge.”

Though Boogerman didn’t express any regret for his misconduct or say he wouldn’t do it again, the arbitrator felt these concerns could be tempered by reinstatement terms that stipulated he not repeat such behaviour.

CLM was ordered to reinstate Boogerman with a five-day unpaid suspension. This reinstatement would be conditional upon Boogerman’s writing of “unqualified apologies” to the finance manager and the executive director and no repeat misconduct for 24 months.

Failure to meet those conditions would result in his dismissal.

Failed to meet terms of reinstatement

A few days after the decision, Boogerman sent his apologies. In the one to the executive director, he wrote: “In the future, if I decide to reveal that you are a misplaced, incompetent executive director, I will do so using the grievance process.” In his letter to the finance manager, he wrote: “If I decide that you are a lying, thieving sociopath, I will do so using the grievance process.”

CLM informed Boogerman his “apologies” did not meet the conditions of his reinstatement and terminated his employment once again. The union argued Boogerman should be given another opportunity to write apologies that complied with his conditions, but the arbitrator denied this request and dismissed the grievance.

“By his further conduct in the form of his so-called ‘apologies’ to (the executive director and the finance manager), Mr. Boogerman has now clearly demonstrated that he is an incorrigible employee, insofar as his continuing insolence toward (the finance manager and the executive director).”

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