Employee warned, disciplined about disparaging remarks
An Ontario school board employee just couldn’t stop bad-mouthing a supervisor, despite warnings, suspensions and finally, termination.
The worker was employed as a utility person for the Limestone District School Board, a public-school board covering the City of Kingston, Ont. and surrounding areas, hired in 2002.
In April 2017, the school board suspended the worker for three days after she made disparaging comments about the operations supervisor. In March 2018, the worker was suspended again — this time for five days — for similar misconduct as well as an allegation that she followed the supervisor through town.
The union grieved the suspensions and reached a settlement with the school board, including an acknowledgment that it was inappropriate to make disparaging comments about co-workers, supervisors or management and the settlement was confidential — disclosure would result in the forfeiture of five days’ pay she was being compensated for in the settlement. The worker had some concerns and refused to sign, but the union agreed to the proposed terms.
The worker claimed that after she left the mediation, she didn’t know what would happen to her grievances and didn’t try to find out. The union mailed her the details of the settlement with a reiteration that she was obligated to not discuss the settlement.
In April 2018, the worker sent a letter to the board’s director of education outlining the uncertainty she felt from the settlement and that for the past year, her work had been “a living hell” under the operations supervisor. She included a cheque equal to five days’ pay, saying that accepting the money didn’t feel right and, by disclosing the results of the settlement, she had to return it.
Soon, the school board learned that the worker had made more comments about the operations supervisor that undermined his authority. Various employees reported that the worker had repeatedly complained about her workplace troubles and the operations supervisor. The school board tried to interview the worker on May 23, 2018, but she refused to answer questions.
It was decided to terminate the worker’s employment based on the worker’s previous discipline for the same misconduct, the disclosure of information related to the settlement in the letter to the director and the worker’s failure to co-operate in the investigation.
The worker grieved the termination, denying she said anything disparaging about the operations supervisor and she had no ill will towards him.
The arbitrator found that based on the reports of multiple employees — who “did not invite or appreciate the comments” — the worker continued to make disparaging comments about the operations supervisor. In addition, the worker’s denial and assertion that she had no ill will towards him didn’t seem credible when she had made comments about him previously and had claimed in the letter that her work had been “a living hell.”
The arbitrator also found the letter to the director of education put the HR department and her own supervisors in a negative light to the board’s most senior officer who had not been involved in the settlement.
However, the arbitrator disagreed that the worker disclosed details of the settlement. It was likely the director had some knowledge of the settlement already and no harm was done. In addition, the settlement itself contained the remedy for such a disclosure — return of the five days’ pay and reinstatement of the suspension. There was no indication the school board could also find it a separate disciplinable offence, said the arbitrator.
Regardless, the fact the worker continued to engage in misconduct about which she had been previously warned and disciplined, with no evidence of provocation, was serious, said the arbitrator. In addition, she refused to accept responsibility or co-operate in the investigation, making it unlikely she would not do it again.
The dismissal was upheld.
Reference: CUPE, Local 1480 and Limestone District School Board (MacLeod-Kane). Jesse M. Nyman — arbitrator. Vince Panetta for employer. Jessica Greenwood for employee. Nov. 4, 2019. 2019 CarswellOnt 18003