Ruling an interesting example of the complexities involved in discipline and dismissal
Editor's note: The following blog contains unedited text from an arbitration ruling. It contains language that some readers may find offensive.
By Stuart Rudner
A recent incident involving a captain from the Calgary Fire Department, and the ensuing arbitration, provide an interesting example of the complexities involved in discipline and dismissal. At first blush, one might think that summary dismissal would be appropriate as a result of this exchange:
After attending an MVA on the corner of Shaganappi and 32 Ave NW, Engine was released from the call and was returning to fire station. At this time, Firefighter Shawn Longworth was driving, Captain Chuck Hendricks was in the Captain's seat, and Nozzleman Darryl Watts and myself, [Firefighter #1], were in the rear cab ofthe vehicle. During our drive back to the station, Captain Hendricks asked the question "Why is there so many 'gashes' at your hall?" I am unsure who this question was directed at. Firefighter Longworth then asked the Captain Hendricks to repeat what he had said. At this time Captain Hendricks replied "Cunts, I mean cunts."
Firefighter Longworth then pointed to the back seat where I was sitting, and Captain Hendricks turned around and said "I'm sorry, I forgot you were here." I did not respond to this comment.
The department engaged in a full investigation, during which Hendricks did not deny the allegations. After the investigation, the decision was made to summarily dismiss him. However, he then sent a “heartfelt” letter of apology.
The deputy chief considered the sincere apology, the captain’s 33 years' of service and his clean disciplinary record, and replaced the dismissal with an eight-week suspension and six-month demotion. The union representing Hendricks filed a grievance, arguing that the penalty was still too harsh.
As I have said many times, when assessing the appropriate level of discipline, an employer cannot consider the misconduct in isolation. A contextual approach must be used which considers all relevant factors, including the employee’s work history, disciplinary history, the nature of his position and any other factors.
In this case, there were many mitigating factors. But the conduct itself was particularly egregious and offensive. The arbitration board reviewed many factors — here is a portion of the decision:
Firstly, we must consider the context of the workplace… A major objective of the CFD is to create a more inclusive workplace creating a welcome environment for women. Negative attitudes towards women and hostile conduct towards women firefighters undermine the efforts of CFD to make progress on this important objective.Secondly, we must consider the context of the Grievor's position as Fire Captain… Fire Captains are expected to serve as role models demonstrating appropriate conduct for the crews they command. Captains are expected to lead by example with respect to their peers, colleagues, and the public.
Thirdly, we must consider the content of the statements in question. Obviously, referring to female firefighters as "gash" and "cunts" is repugnant and demeaning towards women. This language in and of itself would justify a significant disciplinary response. But the balance of the comments by the Grievor is as equally or more important in understanding the entire context… While there are very slight differences in the written statements on the exact words that were . used, I find that the message from the Grievor was clear: The crew of Fire Station "A" was very unfortunate to get stuck with having three women firefighters at their station.
Ultimately, the board upheld the discipline that was imposed.
Since the dismissal had already been reversed, it did not have the opportunity to consider whether summary dismissal would have been appropriate.
Frankly, there are strong arguments on both sides, as the egregiousness of the conduct was extreme but there were many strong mitigating factors. It is an example of a case where different decision-makers may well reach different conclusions.
In my review of hundreds of summary dismissal cases while writing and updating my text on summary dismissal —You're Fired! Just Cause for Dismissal in Canada – I saw more egregious cases where summary dismissal was not upheld and less egregious cases where it was. There are no absolute rules when it comes to summary dismissal. I advise employers that “just cause is not a lost cause,” but summary dismissal must be approached cautiously.
Stuart Rudner is a partner in the Labour & Employment Law Group of Miller Thomson LLP, a national law firm. He provides clients with strategic advice regarding all aspects of the employment relationship, and represents them before courts, mediators and tribunals. He is author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell. He can be reached at 416.595.8672 or firstname.lastname@example.org. You can also follow him on Twitter @CanadianHRLaw and join his Canadian Employment Law Group on LinkedIn.