[author: Adrian Miedema]
An Ontario labour arbitrator has reinstated a dismissed employee after the employer improperly relied on previous discipline and also failed to prove that the employee had threatened a manager with a shovel.
The employer had violated a previous settlement by failing to remove previous discipline from the employee’s record and then relying on that discipline in its dismissal of the employee after the shovel incident. For that reason alone, the termination was “null and void”.
Commenting on the employer’s obligations under the Occupational Health and Safety Act in relation to workplace violence, the arbitrator stated:
“In making this decision, I am cognizant of the company’s obligations under the OHSA. However, even if I had determined the merits of the company’s other reasons for discharge, I would not have found that the company met the onus of demonstrating that the grievor had threatened Mr. A. Bombini with the shovel. There is, therefore, no potential conflict with the company’s obligations under the OHSA in returning the grievor to the workplace.”
Although in this case the arbitrator found that the employee had not threatened with the shovel, this decision demonstrates the importance of following appropriate process and showing care in preparation of the termination letter. Even a strong dismissal case can be lost where, as here, the employer violated the collective agreement by attempting to rely on outdated or “sunsetted” discipline to bolster its workplace-violence dismissal case.
Labourers’ International Union of North America, Local 506 v Tri-Krete Limited, 2012 CanLII 34143 (ON LA)