A British Columbia arbitrator has provided an important reminder to employers that even extreme acts of workplace misconduct may not give rise to just cause for dismissal, as well as a helpful reminder of the factors arbitrators consider when assessing whether cause exists.
As a prank, Mark Sobieski set fire to some fabric hanging from the back of co-worker Greg Draheim's safety vest. Although Sobieski extinguished the flame, the vest reignited. Sobieski again put out the flame, then walked away to assist a customer, believing the flame to be entirely extinguished. Although Draheim knew Sobieski was standing behind him, he was unaware that his vest had been set on fire.
Unfortunately, Sobieski had not entirely extinguished the flame. Shortly thereafter, Draheim’s safety vest reignited and a customer smothered the flames with his hands. As a result, the customer suffered burns and blisters to his hands, which took approximately two weeks to heal.
Sobieksi immediately apologized to the customer and Draheim. Sobieski apologized to the customer a second time that day when he returned to the store.
Dryco failed to see the humour in Sobieski’s prank and terminated him for cause. His actions were determined to be a breach of the company’s safety management system, its written safety manual, and its “zero-tolerance” policy towards horseplay.
On the date of his termination Sobieski had 32 years’ service and held the position of foreman.
Arbitrator Mark Brown reinstated Sobieski, substituting his termination for a lengthy unpaid suspension. In doing so, Arbitrator Brown set out the key factors to be considered when evaluating whether a penalty imposed for workplace misconduct is appropriate. These factors are as follows:
• The previous record of the employee, including whether the incident in question was isolated.
• The employee’s length of service.
• Whether or not the employee was provoked.
•Whether the act was committed on the spur of the moment or was premeditated.
•Whether the penalty imposed has created a special economic hardship for the employee in light of his or her particular circumstances.
•Whether the company policy or rules of conduct (whether posted or not) were known and enforced.
•The seriousness of the incident.
•Any other circumstances that should be taken into consideration.
The arbitrator was influenced by the grievor’s 32 years of service, his largely unblemished work record, his immediate apology, the fact his actions were not premeditated, and the fact he truly believed the flames to be extinguished when he walked away from Draheim.
The arbitrator accepted that Dryco had a safety management system in place, which included monthly safety meetings and a safety manual warning that horseplay “is forbidden and may result in disciplinary action.” However, he concluded that the use of the word “may” in the safety manual was an acknowledgement that termination would not be the appropriate response in all cases. The arbitrator also determined that the employer’s assertion it had “zero tolerance” for horseplay could not be proven.
Arbitrator Brown rejected the union’s suggestion that a short suspension would be appropriate. The arbitrator did not find Sobieski’s explanation for his actions to be compelling, namely, that Sobieski thought the vest was not flammable because it was a safety vest. The arbitrator also recognized that Draheim could have been seriously injured and the customer could have been more seriously injured.
Lessons for employers
The decision is a reminder that arbitrators, when called upon to do so, can and will assess whether an employer’s disciplinary response is appropriate. This assessment may cause an arbitrator to vary the discipline that was imposed, even where the employee’s act is serious, a violation of company policies, or objectively unacceptable.
To increase the likelihood that disciplinary responses are upheld, employers should consider the factors set out by Arbitrator Brown when assessing appropriate disciplinary penalties. In doing so, an employer will increase the likelihood that correct disciplinary decisions are made and will be better positioned to demonstrate that appropriate factors were considered when disciplinary penalties are assessed.
The decision also reminds employers that the existence of a "zero-tolerance" policy for misconduct will not insulate a termination for cause from review. A "zero-tolerance" approach to discipline requires an employer to address all prohibited misconduct; it is not a warranty that termination for cause in response to the misconduct is appropriate in all cases.
For more information see:
• Dryco Drywall Supplies Ltd. v Teamsters Local Union 213 (Feb. 29, 2013), Mark J. Brown — Adj. (B.C. Arb. Bd.).
Madeleine L.S. Loewenberg practices employment and labour law with Norton Rose in Toronto. She can be reached at (416) 216-3932 or firstname.lastname@example.org.