A labour arbitrator in British Columbia recently confirmed that there remain circumstances where a single incident of misconduct will justify the termination of a unionized employee's employment. In Fortis Energy Inc. (PDF), the employee had engaged in an incident of stalking and intimidation of his wife's supervisor. Compounding his offence, he did this during his working hours and while driving his employer's vehicle.
After the company fired the employee, his union filed a grievance. While conceding that the incident was deserving of serious discipline, the union argued that the grievor should not have been fired. His long-service and his confession with respect to the incident should allow him to preserve his employment.
The dismissed employee had worked for Fortis for 25 years. He had no prior discipline on his formal record. Working as a customer service technician for the gas utility, he was described by his manager as a good technical employee.
On May 22, 2014, during the course of his regular duties, the employee had a text message exchange with his wife. He learned that his wife had been suspended from her job at a local hospital due to a disciplinary incident.
Later that day, after completing a number of service calls and making a brief visit to his home, the grievor drove to the hospital where his wife worked. There he waited in his company service vehicle until his wife's supervisor got off work and came out to her car to drive home. He then closely followed her and at one point signalled to her that was watching her. This led to the incident being reported to the police. They later warned the grievor of potential criminal consequences if there were any further incidents.
The following day at work, the grievor alerted his manager to some aspects of the incident but left out a number of key facts. Based on the incomplete account given, the grievor was allowed to take some sick leave and the incident was not investigated at that time. However, a few days later the victim of the incident made a complaint to the company. A full investigation was launched.
The company investigation was able to reconstruct a detailed record of the grievor's work day. They relied on data and information from the company's remote despatch and time entry system. They also used their GPS enabled vehicle location system, and phone records from the company issued phone used by the grievor. During a follow up investigation interview, the grievor was required to turn in his company phone. Much of the text message exchange with his wife was recovered.
Although the grievor was remorseful and gave a fuller account of the incident when confronted during the investigation, he continued to be less than completely forthright with his employer. Significantly, it was revealed at the arbitration hearing that there had been at least one additional text message that the grievor had intentionally deleted from his cell phone because he was concerned that it might be used against his wife.
What the Arbitrator Said
The arbitrator acknowledged the case law put forward by the union which holds that, "implicit in the modern just cause standard is the notion that for most offences in most circumstances, an employer will take the path of corrective discipline prior to resorting to the ultimate sanction of a severance…".
However, the arbitrator went on to find that both the stalking incident itself and the associated breach of trust justified immediate dismissal. In a passage that will be refreshing for employers, he wrote:
The Employer bestowed on the Grievor its trust that he would act responsibly and lawfully in serving the public needs of its customers. His grave misconduct in the stalking, threatening and deliberate intimidation of Ms. Argent on company time and in a company vehicle was a betrayal of that trust. In addition, the Grievor subsequently breached his duty to act honestly and in a forthright manner in his dealings with the Employer. He was deceitful, displayed a lack of concern for the truth and he removed relevant evidence from his company cell phone. I find that the Employer's discharge of the Grievor was for just and reasonable cause and that it was the only response to be reasonably expected in the circumstances. The legitimate interests of the Employer demand acceptance of that result.