Driver fired for not telling employer he was in jail

Worker had a 'responsibility to apprise his employer of his situation at the earliest opportunity,' says arbitrator
|employmentlawtoday.com

An Ontario company was justified in firing a unionized worker who was arrested and jailed and failed to tell his employer what was going on, an arbitrator has ruled.

The worker was a delivery driver for Superior Propane. He was hired on Jan. 7, 2002, and fired on Dec. 1, 2005.

The worker’s arrest

At about 9 p.m. on Nov. 28, 2005, near the end of his shift, the worker was involved in an incident at a supermarket. He was arrested and jailed and charges were laid against him by police.

It’s not clear exactly what the charges were. The arbitrator said the actual charges were irrelevant in determining whether or not there was a “culminating incident” that justified discipline.

“The only evidence material to that question relates to what happened after (his) alleged failure to apprise his employer at the earliest opportunity that he was in jail and unable to report for work on Tuesday, Nov. 29, or for a scheduled meeting on the afternoon of Wednesday, Nov. 30 to explain his absence or provide medical documentation,” said Arbitrator Hinnegan. “As well, there was a further allegation that he attempted to conceal his incarceration by making misleading statements to his employer suggesting an injury as the reason for his absence.”

At the arbitration hearing, counsel for the employer provided “ample arbitral authority” that showed a jailed employee has a personal responsibility to apprise his employer of his situation at the earliest opportunity.

Not doing so was a “serious error in judgment on (the worker’s) part,” the arbitrator said.

A bad situation made worse

The worker was released from jail on Nov. 30 and further aggravated the situation with respect to his duty to provide his employer with an explanation regarding the circumstances surrounding his arrest and criminal charge, the arbitrator said.

He had a chance to disclose his situation to Bashir Mohamed, the operations manager, in a telephone conversation the two had that day. But he didn’t. Citing “other priorities,” the worker also made no real attempt to contact Damon Tyrrell, a market manager he spoke to by telephone on Nov. 29 while still in jail.

But most damaging to his case, in the arbitrator’s view, was the worker’s actions on Dec. 1 when he was out of jail.

“That day, he went to the company premises with two others to retrieve some personal belongings, which he had left in the truck on the evening of his arrest,” said Arbitrator Hinnegan. “However, instead of doing the obvious, i.e., going in to see Mr. Tyrrell and explaining his situation, he stayed across the street, out of sight, obviously for the express purpose of avoiding talking to Mr. Tyrrell, and sent a woman who was with him to get his belongings.”

The woman refused to disclose any information about the worker to Tyrrell at that time. Again, the worker cited “other priorities” for not taking that opportunity to simply go in and explain everything to Tyrrell, as was his obligation as an employee, the arbitrator said.

“There is simply no logical or reasonable excuse for not doing so, other than an attempt to keep Mr. Tyrrell in the dark as long as possible,” Arbitrator Hinnegan said.

The worker’s record

The arbitrator said there was no doubt the worker’s conduct justified some discipline. The arbitrator then took a look at the worker’s prior disciplinary record which was as follows:

•Nov. 5, 2004: Written warning — Alleged time card infraction.

•March 9, 2004: Three-day suspension — Insubordination.

•May 31, 2005: One-day suspension — Preventable accident.

•Aug. 11, 2005: Three-day suspension — Dishonesty. Pay claimed for hours not worked.

“Given that record and the (worker’s) relatively short service, I am satisfied that the culminating incident following his arrest and incarceration irreparably damaged the employment relationship by undermining the necessary trust in an employee,” the arbitrator said.

The arbitrator upheld the termination and dismissed the grievance.

For more information see:

Superior Propane v. CAW-Canada, 2006 CarswellOnt 5578 (Ont. Arb. Bd.)

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