Arbitrator refuses to reinstate fired worker after unjust dismissal finding

Misconduct warrented suspension, not dismissal, but too much bad blood made a return to work untenable
By Michael MacLellan
|employmentlawtoday.com|Last Updated: 05/27/2013

One element of unionized employment which distinguishes it from typical individual employment is that the normal remedy for a union member who is unjustly dismissed is reinstatement, while an individual employee in a non-union setting will likely receive only monetary damages in the same situation. Principles of labour law recognize the inherent value in a collective bargaining job, and arbitrators therefore strive to reinstate unjustly terminated workers.

It is a rare occasion for an arbitrator to find that a unionized worker was terminated without just cause, and then to award damages in lieu of reinstatement, but a recent arbitration decision demonstrates the appropriate circumstances for that outcome.

In C.U.P.E. Local 1487 and The Scarborough Hospital, the worker was a 52 year old plumber with under six years of seniority, and a clean disciplinary record. The worker complained that a co-worker had made a threat against his physical safety but the employer was unable to substantiate the complaint. A number of people in the workplace got involved in an ongoing investigation and the situation generally. The worker went off on stress leave, and once medically cleared, the hospital attempted to return him to work. However, based on his views that the hospital had failed to properly investigate his claims, and fearing for his security, the worker refused. By this time the hospital had become entirely distrustful of the worker and his version of events, and vice-versa.

The hospital concluded that since the worker had, in its estimation, been perpetually dishonest since the time of his initial complaint, and was making serious false claims against it, the employment relationship had been damaged beyond repair. Accordingly, the hospital terminated the worker for just cause.

The parties entered into a long and costly arbitration during which the worker testified there had essentially been a conspiracy perpetrated against him by members of management, the union, and his colleagues. While the arbitrator ultimately decided the hospital did not have just cause to terminate the worker, he also rejected the worker’s position that the hospital had been deliberately acting against him. In the circumstances, the Aabitrator held that it was appropriate to substitute a suspension for the termination. However, he refused to reinstate the worker and ordered compensation to be agreed between the union and the employer. In rejecting the worker's request for reinstatement, the arbitrator said:

“… more than two years later he has not been able to get past the deep feelings of injustice, persecution, and conspiracy which have afflicted him …

… Meyer is entitled to his opinions and I do not suggest that he has been wrong in his perception about everything which has happened. What however I am certain about is that the interests of no one, including him, will be served by his return to the hospital. …”

It is only in the most extraordinary circumstances that an unjustly dismissed employee will not be reinstated to work. Such situations typically require an irreparable breakdown of the employment relationship in which neither party would stand to benefit from reinstatement.

For more information see:

• C.U.P.E. Local 1487 and The Scarborough Hospital (Apr. 3, 2013), James Hayes -- Arb. (Ont. Arb. Bd.).

MIchael MacLellan is a lawyer with Crawford Chondon & Partners LLP in Brampton, Ont, specializing in labour relations, employment litigation and human rights. He can be reached at (905) 874-9343 ext.251 or mmaclellan@ccpartners.ca.

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