Suspension ruled reasonable; lack of representation wasn’t

A Newfoundland and Labrador arbitrator has upheld the unpaid suspension of a worker charged with theft in her previous job, but has also found the worker’s right to union representation was violated when she was suspended.

Rigolet, N.L., is a small Inuit community in northern Labrador. On July 30, 2018, the Rigolet community government learned of a story on CBC news about charges against the town clerk relating to a theft of funds from another municipality for whom the clerk had previously worked. The story alleged that the town clerk and a former boyfriend stole a significant amount of money from the municipality and the court case was pending — she was to enter a plea on Sept. 17. Many residents of the community saw the story and were aware of the charges.

The community government sought advice from its labour relations consultant and legal experts and investigated by consulting media reports. It determined that the town clerk should be suspended without pay pending the results of the trial.

Rigolet’s AngajukKak (mayor) approached the town clerk saying he had received a call from the CBC. The town clerk claimed she didn’t know what he was talking about and the mayor confirmed that she had been charged with “theft in your past employment.” He gave her a letter stating that she was suspended without pay immediately pending the results of the court case.

The town clerk told the union that a former councillor of the Rigolet community government had been charged with committing a crime during a business trip and didn’t face immediate consequences because the mayor had said that a person charged was innocent until proven guilty. She also complained that she wasn’t offered union representation when the mayor suspended her. She said that “given the opportunity, arrangements could have been made to allow me to still work” such as no handling of cash.

The union filed a grievance claiming that the town clerk should not have been suspended — she had no previous discipline or performance issues — and the community government violated the collective agreement by not consulting the union or advising the town clerk of her right to union representation when she was suspended.

The arbitrator found that the collective agreement provided for an employee to have the assistance of a union representative on all matters of the employment relationship, but there was no obligation to consult the union first. The onus was on the employee to request such assistance — the town clerk didn’t make a request so the community government didn’t deny that right, said the arbitrator.

However, the collective agreement required the employer to advise any employee subject to discipline of their right to representation, so when the town clerk was given the suspension letter, she should have been advised as such. The community government violated the collective agreement when it suspended her without giving her the chance for representation, said the arbitrator.

As for the suspension itself, the arbitrator found that it was reasonable. The community government investigated the matter and confirmed the charges. The town clerk held a position of trust in handling the town’s finances and the charges related directly to her position. From the community’s point of view, having the clerk continue to work pending the outcome of the trial would put the “legitimate business concerns of the employer at risk including its reputation, and the safety and security of its property,” said the arbitrator, adding that there was no evidence the town clerk’s duties could be reasonably performed by modifying them.

The arbitrator upheld the suspension but ordered the parties to negotiate compensation for the violation of the town clerk’s right to union representation when she was suspended.