Termination excessive for ethics violation

The grievor had been charged criminally and had not informed the employer. The company learned of the charges and fired him for a violation of its ethics policy. The arbitrator found the offence to be an isolated one and termination to be unnecessary.

A telecommunications worker was fired for violating the company’s ethics policy after it was discovered that he failed to notify the employer about pending criminal charges.

John Doe (J.D.) worked as a Technician for a telecommunications provider. He was hired in 1997. There was no discipline on J.D.’s record and his work garnered positive performance evaluations. As part of his job involved installations and service calls, J.D. was required to work in clients’ homes on occasion.

In March 2011, one of J.D.’s supervisors read a newspaper account about an upcoming trial of a man who had been charged with a number of counts of sexual assaults on minors. The charges stemmed from events alleged to have taken place 20 years earlier. The suspect’s name was the same as “J.D.’s,” however, the newspaper account made no link to the company.

The company made inquiries. Two investigatory meetings were held with J.D. At the first on March 24, J.D. immediately acknowledged that he was the suspect named in the newspaper. Time off was arranged for J.D.

A second investigatory meeting was held on April 8 after J.D. had returned to work. J.D. was asked if his bail conditions permitted him to work unsupervised in clients’ homes.

J.D. was also quizzed about his understanding of his obligations under the company’s ethics policy and whether or not he had signed off on and/or completed the company’s online “e-ethics” course.

Bail conditions

The supervisor asked J.D. if he was aware that he was required to tell the employer about his involvement in any police or legal matters that carried the potential to affect his ability to do his job or that might harm the interests of the company.

J.D. confirmed that he had completed the company’s “e-ethics” course. He also acknowledged that there was one key bail condition that prohibited him from having any unsupervised contact with children under the age of 14. However, J.D. asserted that condition was not problematic because it was essentially the same as company policy, which prevented staff from entering homes to perform service calls unless an adult was present.

J.D. acknowledged that he failed to disclose his legal troubles. By way of explanation, J.D. admitted to a degree of embarrassment concerning the charges. He also took the view that he was not obliged to disclose his legal troubles because the charges were old and his ability to perform his job was not impaired.

J.D. received advice from his union representative that supported this view. He got the same advice — unofficially — from his girlfriend at the time who was then a manager at the company.

J.D. was fired on April 11. A few days later, J.D. was acquitted of the charges against him.

The union grieved.

J.D.’s willful blindness to his obligations under the company’s ethics policy constituted a breach of trust, the employer said. His failure to disclose his circumstances prevented the company from managing potential risks to its reputation. The employer said termination was warranted.

Willful blindness

The union said that J.D. had to make a judgment call about whether or not the company’s ethics policy applied to his situation. He determined that it did not. The union also said that the company’s ethics policy did not take into account an individual’s right to privacy. Even if discipline was warranted for a breach of company policy, termination for a first offence was excessive and not in keeping with the goals of progressive discipline.

The Arbitrator agreed.

J.D. was guilty of self-deception and willful blindness on the question of whether or not the company’s rules applied to his situation, the Arbitrator said. The Arbitrator accepted that J.D. had received some limited assurances that supported his own assessment of his situation.

It was understandable that J.D. might seize on such opinions in order to help him rationalize his evasion of company policy, the Arbitrator said, but that was not sufficient to justify his inaction in the circumstances.

However, there were mitigating factors.

“The offence here is for failing to report his charges to his employer. I see this as an isolated incident and one unlikely to arise again in the employment relationship were it to continue.”

J.D. had a superior work record and he owned up to his circumstances as soon as he was confronted.

The Arbitrator said that the employment relationship was not irreconcilably damaged.

J.D. was ordered reinstated and the termination was substituted with a two-month suspension.

Reference: Telus Communications Inc. and Telecommunication Workers Union. Andrew C.L. Sims — Sole Arbitrator. Alan Hamilton for the Employer. Rick Edgar for the Union. July 13, 2012. 35 pp.

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