Demotion leads to accusation of discrimination

Arbitrator finds employee not disciplined because of anxiety disorder

After being suspended and demoted, Daniel Moore suffered from so much anxiety he was forced to take sick leave.

Moore — along with the Canadian Union of Public Employees (CUPE) Local 759 — filed three grievances against his employer, the regional municipality of Cape Breton in Nova Scotia.

The union requested Moore be reinstated to his former position as working foreman and be compensated by way of any lost wages and benefits during his time on sick leave.

But the employer argued Moore’s discipline was warranted and unrelated to his sick leave, calling for all three grievances to be dismissed.

Moore worked for the employer for 34 years in the Public Works central division’s water department.

In 2010 and 2011 Moore was given verbal warnings for his personal use of the employer’s vehicles, eventually leading to a one-day suspension in December of 2011.

In the same letter of discipline, Moore was demoted for failing to follow procedure while responding to calls for service during the same time period.

On Dec. 14, 2011, Moore went to see his family physician and was given a note that deemed him off work for medical reasons, indefinitely.

Moore suffered from an anxiety disorder for a decade leading up to his demotion. He was diagnosed in April of 2003. There was no evidence his condition was disabling in any way before his suspension and demotion.

Moore testified the stress related to this discipline rendered him unable to work. The third grievance addressed the alleged discrimination against Moore on the basis of his anxiety disorder.

Scott Thomas, the employer’s diversity officer, conducted an investigation of Moore’s suspension and demotion. He found the employer had acted inconsistently when it demoted Moore and, in September of 2012, Moore was returned to his position as working foreman.

Following his return to work, the union continued to explore Moore’s claim for any lost compensation while he was off work on sick leave.

The employer argued there had been no financial penalty. Despite being demoted, the employer testified Moore was compensated at the working foreman rate during his sick leave. The union argued Moore had still sustained a loss, as he was forced to use his sick leave because of his work-related anxiety.

Arbitrator Augustus Richardson addressed each grievance individually.

The grievance relating to Moore’s one-day suspension was dismissed. The evidence was clear and uncontested, Richardson ruled, that Moore used the employer’s vehicles for personal use.

Based on previous verbal warnings, Richardson found a one-day suspension to be reasonable progressive discipline.

Richardson allowed the grievance related to Moore’s demotion, ruling the discipline lacked concrete evidence. He ordered references to the demotion be deleted from Moore’s file and declared Moore was to be considered to have held the position of working foreman during his sick leave from December of 2011 to September of 2012.

The grievance related to alleged discrimination was dismissed.

In his findings, Thomas used the word "discrimination" in his description of the employer’s failure to provide appropriate and progressive discipline before demoting Moore.

In his ruling, Richardson found this to be a poor choice of words.

"It is unfortunate that Mr. Thomas… used the word discrimination. It is also unfortunate that he suggested that the grievor had been discriminated against because progressive discipline had not been employed," he said.

"The employer did not discipline the grievor — or discriminate against him — because he suffered from an anxiety disorder. The fact that the employer may have made the wrong decision — or failed to impose the kind of discipline Mr. Thomas thought appropriate — was not necessarily evidence of harassment or discrimination. At best it was simply an error of judgment on management’s part."

Reference: Cape Breton Regional Municipality and the Canadian Union of Public Employees, Local 759. Augustus Richardson — arbitrator. Demetri Kachafanas for the employer, Wanda Power for the union. May 29, 2014.

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