Employee reinstated after boss fails to prove misconduct

Reasonable cause for discipline not established: Arbitrator

Ed Sankey won back his job at the Cariboo Pulp and Paper Company in British Columbia after the union said he was terminated without just cause.

Sankey was fired in February of 2015, at which time he had almost 35 years of seniority and one previous disciplinary reprimand on file. He was terminated for the way he handled an event on the night shift earlier that month.

On the night in question, the company received a delivery and through actions of employees, the excavator was pushed a few times and eventually buried under the deliveries.

Through an investigation conducted by the employer, it was decided Sankey was the person responsible for the mishap.

However, the union said that by the time the grievor reported for duty, the excavator had already been piled up, and further, that there was a lot of snow on the mechanism.

One employer witness, another bargaining unit employee, testified Sankey said, “Fuck the mach (sic), I’ll bury it.” At the hearing, Sankey denied saying this.

As the employer saw it, Sankey had willfully damaged or sabotaged the employer’s property, which was a serious employment offence akin to theft and should have been viewed within the context of criminal conduct.

“The grievor’s refusal to acknowledge and take responsibility for his conduct and to persist in lying throughout the employer’s investigation provides the arbitrator with clear evidence that there is no viable sustainable employment relationship,” the employer said.

Therefore, Cariboo was well within its management rights to dismiss Sankey.

However, the union, Local 1115 of Unifor, said there was no concrete evidence that the grievor was responsible for the excavator pileup.

Further, the employer’s investigation was flawed and inadequate, thereby rendering the termination unjust and without cause.

Unifor said the employer failed to inform Sankey of its investigation against him and only approached him after it had interviewed other employees, more than one week after the night shift incident.

“The employer did not provide any motivation on the part of the grievor, and having received a suspension earlier in 2015 and being told he was on the verge of termination, it is difficult to accept that he would engage in a deliberate act and risk termination,” the union said.

The arbitrator agreed with the union.

“No one saw the grievor bury the excavator and, in my view, there are other possible reasons,” the arbitrator said.
“There is no clear, cogent and convincing evidence that the grievor committed the offence. Just and reasonable cause for discipline in this case has not been established.”

Therefore, the grievance was allowed and Sankey was reinstated.

Reference: Cariboo Pulp & Paper Company and Unifor Local 1115. Ronald Keras — arbitrator. Donald Jordan for the employer, Craig Bavis for the union. Dec. 29, 2015.

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