A reinstatement carries the power of a court order, but employers might have an out if they really don’t want the worker back
There’s no getting around it — reinstating a fired worker is going to be awkward.
“It’s a very difficult situation for everybody involved,” said Matthew Certosimo, a lawyer with Borden Ladner Gervais in Toronto. “It’s difficult for the manager who made that decision and has had it overturned by an arbitrator. It’s difficult for the co-workers, some of whom may have been witnesses at the arbitration. And, in fairness, it’s difficult for the worker.”
Living with a reinstatement
He said employers should sit down with the worker and the union and talk about the transition back to work. Things like missed training or changes in procedure need to be discussed and addressed. This type of “fireside chat” can lay the groundwork for a successful return and outline the expectations for both sides.
Employers should give the worker a clean slate and need to be careful not to prejudice any future discipline against the reinstated worker.
“If there’s going to be a subsequent incident, if there’s going to be subsequent discipline and the worker might meet with a discharge down the road, you don’t want it to be set aside because of some allegation that the worker was never given a chance after his return,” said Certosimo. “You want to make sure that the page turns so any new discipline will rise or fall on its own merits.”
If there are potential issues about how the fired worker and his co-workers will interact, an employer might want to implement some special protocols to deal with any ugly situations.
“It seems appropriate in difficult circumstances like this one for there to be an understanding that if, for example, the worker feels he is being harassed by co-workers or being shunned or mistreated in some way, he can go to his supervisor right away and have a discussion so it doesn’t get any worse,” Certosimo said.
Brian Gale, a partner with Grosman, Grosman and Gale, said employers can also take reinstatement as an opportunity to better manage performance issues.
“If there have been some real performance issues, you as an employer might take the opportunity this time around to manage the performance issues more stringently to ensure the employee walks a pretty narrow line,” said Gale. “Certainly, that’s within the employer’s right to do that.”
He also said it makes a lot of sense to have a meeting and make it clear the slate is clean.
“Say ‘OK. Look, you’re back and it’s water under the bridge and let’s move forward and we expect that you’re going to be a good employee and follow our policies and procedures and we’ll treat you no better or no worse than any other employee,’” said Gale.
Getting out of a reinstatement
Employers have to comply with an order from an arbitrator to reinstate a worker because the order carries the same weight as a court order.
But an employer does have options. It can apply to a court to have the decision reviewed, though the grounds for review are pretty narrow. Courts won’t usually touch a decision unless they deem it to be “patently unreasonable,” said Certosimo.
Courts won’t second-guess an arbitrator. Even if they think they would have come to a different conclusion, they will defer to the arbitrator.
“(They’re) not going to interfere with the decision,” he said. “Only if the decision is ‘patently unreasonable’ will it be set aside.”
Another option is to simply buy the employee out. Gale said some employers choose this option rather than having to deal with reinstating a worker.
“Given everything that has happened, the employee might not want to go back either,” said Gale. “But he has this entitlement pursuant to the order of the award of the arbitrator to be reinstated. So often it’s worth another few months of compensation just to get a release from the employee.”
But the employee is under no obligation to accept a buy-out, in which case the employer has no choice but to reinstate him.
INVESTIGATION CHECKLIST
Preparing evidence to back up discipline
Conducting a thorough investigation before firing a unionized worker for cause is critical. Here are some best practices to follow to help ensure an investigation into worker misconduct will stand up to an arbitrator’s scrutiny:
•Does the collective agreement entitle the worker to union representation during the interview, whether disciplinary or investigative?
•Before interviewing any witnesses, including the worker being investigated, prepare a script of questions that can be used during the interview. This script may be entered as an exhibit in a subsequent arbitration to detail the exact questions and the order in which they were asked.
•Arrange for a note-taker to be present during the interview of all witnesses, including the worker being investigated. Caution the note-keeper to keep in mind that all interview notes taken during the investigation may be admissible in any subsequent arbitration and, in any case, that the notes ought to be credible, comprehensive and comprehensible.
•During the course of the investigative interviews, it is important to obtain specific information, such as with respect to times, dates, locations, individuals involved or names of any witnesses.
•Avoid completing the sentences for witnesses or characterizing their observations during the course of the interview. It is important that you learn and obtain the witness evidence without prejudice.
•Determine if the information from witnesses was gathered first-hand or based on what they have heard or were told by somebody else.
•Before choosing more invasive investigative methods, such as searches, surveillance or polygraphs, consider whether the results will be admissible in any subsequent arbitration. In the case of polygraph evidence, it is unlikely that the evidence would be admissible. For employee searches and surveillance to be permitted or admitted, the employer will have to satisfy certain tests, which go to the reasonableness of the decision to employ such methods. Mere rumour or suspicion is unlikely to justify the decision to use such procedures.
Source: Dismissal in the Unionized Workplace, Second Edition. By Matthew Certosimo, published by Carswell. For more information, visit www.carswell.com.
“It’s a very difficult situation for everybody involved,” said Matthew Certosimo, a lawyer with Borden Ladner Gervais in Toronto. “It’s difficult for the manager who made that decision and has had it overturned by an arbitrator. It’s difficult for the co-workers, some of whom may have been witnesses at the arbitration. And, in fairness, it’s difficult for the worker.”
Living with a reinstatement
He said employers should sit down with the worker and the union and talk about the transition back to work. Things like missed training or changes in procedure need to be discussed and addressed. This type of “fireside chat” can lay the groundwork for a successful return and outline the expectations for both sides.
Employers should give the worker a clean slate and need to be careful not to prejudice any future discipline against the reinstated worker.
“If there’s going to be a subsequent incident, if there’s going to be subsequent discipline and the worker might meet with a discharge down the road, you don’t want it to be set aside because of some allegation that the worker was never given a chance after his return,” said Certosimo. “You want to make sure that the page turns so any new discipline will rise or fall on its own merits.”
If there are potential issues about how the fired worker and his co-workers will interact, an employer might want to implement some special protocols to deal with any ugly situations.
“It seems appropriate in difficult circumstances like this one for there to be an understanding that if, for example, the worker feels he is being harassed by co-workers or being shunned or mistreated in some way, he can go to his supervisor right away and have a discussion so it doesn’t get any worse,” Certosimo said.
Brian Gale, a partner with Grosman, Grosman and Gale, said employers can also take reinstatement as an opportunity to better manage performance issues.
“If there have been some real performance issues, you as an employer might take the opportunity this time around to manage the performance issues more stringently to ensure the employee walks a pretty narrow line,” said Gale. “Certainly, that’s within the employer’s right to do that.”
He also said it makes a lot of sense to have a meeting and make it clear the slate is clean.
“Say ‘OK. Look, you’re back and it’s water under the bridge and let’s move forward and we expect that you’re going to be a good employee and follow our policies and procedures and we’ll treat you no better or no worse than any other employee,’” said Gale.
Getting out of a reinstatement
Employers have to comply with an order from an arbitrator to reinstate a worker because the order carries the same weight as a court order.
But an employer does have options. It can apply to a court to have the decision reviewed, though the grounds for review are pretty narrow. Courts won’t usually touch a decision unless they deem it to be “patently unreasonable,” said Certosimo.
Courts won’t second-guess an arbitrator. Even if they think they would have come to a different conclusion, they will defer to the arbitrator.
“(They’re) not going to interfere with the decision,” he said. “Only if the decision is ‘patently unreasonable’ will it be set aside.”
Another option is to simply buy the employee out. Gale said some employers choose this option rather than having to deal with reinstating a worker.
“Given everything that has happened, the employee might not want to go back either,” said Gale. “But he has this entitlement pursuant to the order of the award of the arbitrator to be reinstated. So often it’s worth another few months of compensation just to get a release from the employee.”
But the employee is under no obligation to accept a buy-out, in which case the employer has no choice but to reinstate him.
INVESTIGATION CHECKLIST
Preparing evidence to back up discipline
Conducting a thorough investigation before firing a unionized worker for cause is critical. Here are some best practices to follow to help ensure an investigation into worker misconduct will stand up to an arbitrator’s scrutiny:
•Does the collective agreement entitle the worker to union representation during the interview, whether disciplinary or investigative?
•Before interviewing any witnesses, including the worker being investigated, prepare a script of questions that can be used during the interview. This script may be entered as an exhibit in a subsequent arbitration to detail the exact questions and the order in which they were asked.
•Arrange for a note-taker to be present during the interview of all witnesses, including the worker being investigated. Caution the note-keeper to keep in mind that all interview notes taken during the investigation may be admissible in any subsequent arbitration and, in any case, that the notes ought to be credible, comprehensive and comprehensible.
•During the course of the investigative interviews, it is important to obtain specific information, such as with respect to times, dates, locations, individuals involved or names of any witnesses.
•Avoid completing the sentences for witnesses or characterizing their observations during the course of the interview. It is important that you learn and obtain the witness evidence without prejudice.
•Determine if the information from witnesses was gathered first-hand or based on what they have heard or were told by somebody else.
•Before choosing more invasive investigative methods, such as searches, surveillance or polygraphs, consider whether the results will be admissible in any subsequent arbitration. In the case of polygraph evidence, it is unlikely that the evidence would be admissible. For employee searches and surveillance to be permitted or admitted, the employer will have to satisfy certain tests, which go to the reasonableness of the decision to employ such methods. Mere rumour or suspicion is unlikely to justify the decision to use such procedures.
Source: Dismissal in the Unionized Workplace, Second Edition. By Matthew Certosimo, published by Carswell. For more information, visit www.carswell.com.
