In a recent grievance decision, Re Prince George and Prince George Firefighters, Local 1372 (Williams), 2016 CarswellBC 2591, a labour arbitrator reinstated a firefighter whose employment was terminated after being found guilty of possession of a stolen boat and trailer.
The arbitrator concluded that in order to justify terminating a unionized employee, there must be a sufficient nexus between the employee's misconduct away from work, and his employment duties.
Facts
The Grievor had been a firefighter for 11 years with a pristine work record. There were no concerns with his honesty or work. In 2012, he purchased a boat and trailer for $9,500 from a fellow firefighter. The boat, reportedly worth approximately $30,000, had been stolen. The state of the Grievor's knowledge when he purchased the boat was disputed.
The Grievor was arrested in 2013. The RCMP phoned the Grievor and asked to attend his property to investigate a tip that a stolen boat was located on his property. Within minutes of the call, the Grievor hooked the boat and trailer up to his car and began towing it away from his property. However, the Grievor's property was under surveillance and he was arrested.
The Grievor lied about his acquisition of the boat and trailer in his initial statement to police, providing a story about how he purchased the boat, and three different purchase prices. He later admitted to the RCMP that he bought the boat from a fellow firefighter for much less, but he did not admit to knowing the boat was stolen. However, he made some comments that he had doubts about the deal, and suggested he "had an inkling in the pit of his stomach" about it.
The employer investigated and the Grievor reluctantly admitted to the arrest. The Grievor was placed on leave, but the employer did not initially ask if he knew the boat was stolen. When asked in a subsequent interview, the Grievor said it was a "grey area". He also advised the employer of his attempt to flee with the boat. The employer allowed the Grievor to return to work with conditions, accepting that he was being forthright.
In the criminal proceedings, the court did not accept the Grievor's evidence, and he was found to have known the boat was stolen. The trial was widely reported in the local media.
Upon learning of the verdict, the employer terminated the Grievor's employment. The employer's reasons, as stated at arbitration, included: the comments made by the judge regarding the non-acceptance of the Grievor's evidence and his credibility, dishonesty and lack of judgment; the media reports and negative publicity; and concerns about the Grievor's honesty during the employer's investigation.
Arbitrator's Reasons
The arbitrator found it difficult to reconcile evidence regarding the Grievor's police statement and his evidence at trial and arbitration that he had no concern the boat was stolen. She noted that she had "grave doubts" as to his understanding of the underlying issue of his honesty. Nevertheless, she proceeded to consider the question of whether termination was excessive in the circumstances.
To this end, relying on Millhaven Fibres Ltd. and OCAW, Local 9-670, Re, [1967] O.L.A.A. No. 4 (Ont Arb), the arbitrator noted that in determining whether the Grievor's conduct away from the place of work was a justifiable reason for discharge, there was an onus on the employer to show that:
- The conduct of the Grievor harms the employer's reputation or product;
- The Grievor's behaviour renders the employee unable to perform his duties satisfactorily;
- The Grievor's behaviour leads to refusal, reluctance or inability of the other employees to work with him;
- The Grievor has been guilty of a serious breach of the criminal code and thus rendering his conduct injurious to the general reputation of the employer and its employees;
- The conduct causes difficulty in the way the employer properly carries out its function of efficiently managing its works and efficiently directing its working force.
The arbitrator found there was no direct link between the misconduct and the Grievor's duties. There was no suggestion he could not be trusted to do his firefighting duties. The arbitrator accepted that it was an isolated incident by an employee with a pristine work record, not likely to be repeated. Moreover, he was not in a fiduciary position, and his duties did not expose him to the temptation of greed.
In short, the arbitrator concluded that there was an insufficient nexus between the Grievor's misconduct and his duties to warrant termination. Accordingly, the arbitrator reinstated the Grievor, but declined to award wages, seniority or benefits from the date of termination to the date of reinstatement.
Take Away
Criminal convictions in and of themselves may not justify termination of an employee on the basis of dishonesty and lack of trust. Despite findings of misconduct in criminal proceedings, employers terminating for cause must establish that the misconduct actually relates in more than a general manner to the duties to be performed by the employee.
For more information, visit our Employment and Labour blog at www.employmentandlabour.com
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