Municipal worker in Bracebridge, Ont., fired after employer alleged misconduct
A municipal worker was fired after the employer alleged a number of incidents of misconduct.
T.L. worked for the Town of Bracebridge in Ontario as a By-law Officer. He had about 21 years’ service when he was fired on Dec. 9, 2010. His disciplinary record at the time of his termination consisted of a one-day suspension.
The employer alleged cause for the termination and detailed 10 incidents of alleged misconduct.
The alleged incidents, which took place between August and December 2010, consisted of acts of insubordination, dereliction of duty and violations of the employer’s workplace harassment policy.
T.L. began working for the municipality in 1989. He started in the Water and Sewer department and transferred to By-law Enforcement in 1993.
T.L.’s relationship with the employer began to deteriorate around 2005 after the town appointed a new chief administrative officer (CAO). The employer perceived T.L. as becoming insubordinate. T.L. felt he was being harassed.
T.L.’s performance issues were addressed in a non-disciplinary acknowledgement agreement arrived at on April 7, 2010. On Aug. 27, 2010, under the terms of a mediated settlement, T.L. withdrew two grievances against the employer and the employer reduced an outstanding disciplinary sanction against T.L. to a one-day suspension.
Slurs, inappropriate comments
A summer student being supervised by T.L. reported to the employer that T.L. made a number of inappropriate and unprofessional comments on Aug. 31, 2010. In particular, the student reported T.L. as counselling the student to work more slowly so T.L. would not be “showed up.” T.L. was also reported to have made generally disparaging and derogatory comments about supervisors and the CAO that included allegations of inappropriate conduct and slurs about sexual orientation.
The CAO had documented an incident that occurred one week later. T.L. reportedly told the CAO his predecessor had been run out of town. T.L. is then alleged to have told the CAO that perhaps it was now time for him to go too.
T.L. later made disparaging and hurtful comments about the town’s director of economic development.
There was also another incident in the CAO’s office. T.L. was alleged to have made a metaphorical statement setting out the proposition that if one were to continue to provoke a dog, at some point, “that dog eventually bites back.” The CAO perceived the remark as a threat.
On Nov. 3, 2010, T.L. was discovered at home during work hours by his supervisor. T.L. said that he was home briefly to let his dog out. Two weeks later, T.L. was observed parked and, allegedly, staking out his supervisor’s house over the lunch hour. T.L. denied that he was staking out his supervisor’s house but he had no explanation as to why he was there. He was fired.
The employer argued termination was warranted for insubordination. The employer also took issue with T.L.’s work performance, including a refusal to be on call, couselling his crew to work slower and using paid work time to perform personal errands. Numerous violations of the workplace harassment policy were also alleged.
Failure to manage
The union said the employer had failed in its duty to manage T.L. Instead of applying progressive discipline, the employer had simply “built a file” and then summarily dismissed him. The employer did not provide T.L. with an opportunity to raise his behaviour up to the standard expected by the employer. This was fatal to the employer’s case, the union said.
The arbitrator agreed.
“In the circumstances it is difficult not come to the conclusion urged upon me by the union that the employer waited until it could ‘package together’ several incidents of misconduct and assert sufficient cause for termination of employment. The difficulty with this approach is that it ignores the principles of progressive discipline,” the arbitrator said.
The object of discipline was to alert the employee his behaviour was unacceptable with the hope and expectation the conduct in question could be improved and the employment relationship could also be restored, the arbitrator said.
Egregious behaviour may warrant summary dismissal, but that was not the case here.
“In this case I have concluded that standing alone and in isolation none of the incidents of the grievor’s misconduct warrant summary dismissal of an employee with 21 years of service. The misconduct is offensive but is not such which by its very nature irreparably severs the employment relationship.”
The employer’s failure to apply progressive discipline was a significant mitigating factor that tipped the balance against termination in this case, the arbitrator said.
T.L. was ordered reinstated. However, his conditional reinstatement required him to refrain from making any threats (whether metaphorical or not) or derogatory comments about his supervisors. For 12 months following his reinstatement, T.L. was also required to notify his supervisor when he was taking breaks.
Reference: Corporation of the Town of Bracebridge and Ontario Pubic Service Employees Union, Local 305. Louisa M. Davie — Sole Arbitrator. Tim Hannigan for the Union. William Phelps for the Employer. December 11, 2012. 60pp.
T.L. worked for the Town of Bracebridge in Ontario as a By-law Officer. He had about 21 years’ service when he was fired on Dec. 9, 2010. His disciplinary record at the time of his termination consisted of a one-day suspension.
The employer alleged cause for the termination and detailed 10 incidents of alleged misconduct.
The alleged incidents, which took place between August and December 2010, consisted of acts of insubordination, dereliction of duty and violations of the employer’s workplace harassment policy.
T.L. began working for the municipality in 1989. He started in the Water and Sewer department and transferred to By-law Enforcement in 1993.
T.L.’s relationship with the employer began to deteriorate around 2005 after the town appointed a new chief administrative officer (CAO). The employer perceived T.L. as becoming insubordinate. T.L. felt he was being harassed.
T.L.’s performance issues were addressed in a non-disciplinary acknowledgement agreement arrived at on April 7, 2010. On Aug. 27, 2010, under the terms of a mediated settlement, T.L. withdrew two grievances against the employer and the employer reduced an outstanding disciplinary sanction against T.L. to a one-day suspension.
Slurs, inappropriate comments
A summer student being supervised by T.L. reported to the employer that T.L. made a number of inappropriate and unprofessional comments on Aug. 31, 2010. In particular, the student reported T.L. as counselling the student to work more slowly so T.L. would not be “showed up.” T.L. was also reported to have made generally disparaging and derogatory comments about supervisors and the CAO that included allegations of inappropriate conduct and slurs about sexual orientation.
The CAO had documented an incident that occurred one week later. T.L. reportedly told the CAO his predecessor had been run out of town. T.L. is then alleged to have told the CAO that perhaps it was now time for him to go too.
T.L. later made disparaging and hurtful comments about the town’s director of economic development.
There was also another incident in the CAO’s office. T.L. was alleged to have made a metaphorical statement setting out the proposition that if one were to continue to provoke a dog, at some point, “that dog eventually bites back.” The CAO perceived the remark as a threat.
On Nov. 3, 2010, T.L. was discovered at home during work hours by his supervisor. T.L. said that he was home briefly to let his dog out. Two weeks later, T.L. was observed parked and, allegedly, staking out his supervisor’s house over the lunch hour. T.L. denied that he was staking out his supervisor’s house but he had no explanation as to why he was there. He was fired.
The employer argued termination was warranted for insubordination. The employer also took issue with T.L.’s work performance, including a refusal to be on call, couselling his crew to work slower and using paid work time to perform personal errands. Numerous violations of the workplace harassment policy were also alleged.
Failure to manage
The union said the employer had failed in its duty to manage T.L. Instead of applying progressive discipline, the employer had simply “built a file” and then summarily dismissed him. The employer did not provide T.L. with an opportunity to raise his behaviour up to the standard expected by the employer. This was fatal to the employer’s case, the union said.
The arbitrator agreed.
“In the circumstances it is difficult not come to the conclusion urged upon me by the union that the employer waited until it could ‘package together’ several incidents of misconduct and assert sufficient cause for termination of employment. The difficulty with this approach is that it ignores the principles of progressive discipline,” the arbitrator said.
The object of discipline was to alert the employee his behaviour was unacceptable with the hope and expectation the conduct in question could be improved and the employment relationship could also be restored, the arbitrator said.
Egregious behaviour may warrant summary dismissal, but that was not the case here.
“In this case I have concluded that standing alone and in isolation none of the incidents of the grievor’s misconduct warrant summary dismissal of an employee with 21 years of service. The misconduct is offensive but is not such which by its very nature irreparably severs the employment relationship.”
The employer’s failure to apply progressive discipline was a significant mitigating factor that tipped the balance against termination in this case, the arbitrator said.
T.L. was ordered reinstated. However, his conditional reinstatement required him to refrain from making any threats (whether metaphorical or not) or derogatory comments about his supervisors. For 12 months following his reinstatement, T.L. was also required to notify his supervisor when he was taking breaks.
Reference: Corporation of the Town of Bracebridge and Ontario Pubic Service Employees Union, Local 305. Louisa M. Davie — Sole Arbitrator. Tim Hannigan for the Union. William Phelps for the Employer. December 11, 2012. 60pp.
