Call us for a FREE 30 minute phone consultation at 416-907-9249 or submit a callback request
Monkhouse Law, acting for the employer Core One Mechanical Group Inc., was recently successful in a preliminary motion in a grievance arbitration at the Ontario Labour Relations Board.
United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 787 v Core One Mechanical Group Inc., 2018 CanLII 44807 (ON LRB).
When Core One dismissed the employee, its termination letter did not give a reason for the dismissal, however, it stated that he would receive severance pay. Immediately after being notified of his termination, and before leaving the premises, Core One alleges that the employee destroyed company property. Afterwards, Core One informed the employee the reason it terminated him was due to lack of work. The matter was with respect to the validity of the termination of a unionized employee. A collective agreement governs the relationship between Core One and the employee’s union. According to the collective agreement, an employee can only be terminated in one of two ways: 1) due to a lack of work, or 2) for just cause. The hearing concerned whether Core One dismissed the employee in accordance with the collective agreement.
There were two issues at the motion: 1) did Core One change its reason for the termination; and, 2) could Core One rely on the employee’s post-termination misconduct to justify a for cause termination?
Vice-Chair Adam Beatty that Core One did not change its reason for terminating the employee post-termination, and that it could introduce post-termination misconduct at the hearing to justify after-acquired cause.
Change of Position
In the labour law context, employers are generally not allowed to change the reasons for which an employee is terminated after termination. The general rule is that labour arbitrators will not hear evidence related to a different than the original reason asserted by an employer. Accordingly, the first issue was whether Core One had terminated the employee due to a lack of work at the time of termination or if it had changed its position after the fact.
The employee argued that Core One alleged neither a lack of work nor that it had cause to terminate pointing to the language of the termination letter.
The termination letter did not explicitly provide a reason for the termination, however, Monkhouse Law successfully argued that because the termination letter referenced the layoff provisions within the collective agreement, and that the employee would receive severance pay, it was reasonable to infer that Core One terminated him due to lack of work. Vice-Chair Beatty agreed and stated that the only reason to provide the employee severance pay was that Core One concluded the employee’s layoff would last longer than 13 weeks, which, under the collective agreement is a pre-requisite to termination due to a lack of work. Accordingly, Vice-Chair Beatty concluded that the employee’s termination was, from the beginning, due to a lack of work.
Post Termination Conduct
The second issue on the hearing was whether Core One could adduce evidence at a hearing on the merits of the employee’s misconduct during and at the conclusion of the termination meeting.
Core One alleges that the employee deliberately destroyed company property after being notified of his termination and takes the position this behaviour justifies the employee’s dismissal for cause.
The employee argued that post-termination conduct is inadmissible as evidence justifying a termination for cause. Case law generally supports the proposition that employers should not be able to assert new grounds to justify a for cause dismissal after termination.
Monkhouse Law successfully argued that given the conduct occurred immediately after being notified of his termination, and before leaving the company’s premises, it was within the continuum of the discharge. Vice-Chair Beatty agreed and found that because the employee’s action occurred concurrently with his discharge, Core One could cite the misconduct to justify a for cause termination. The arbitrator specifically recognized that as the employee’s misconduct occurred within the continuum of his discharge, it cannot be a ‘new ground’ for dismissal. To hold otherwise would give the employee a “free pass” on the misconduct engaged in at the time he received his termination letter.
The hearing did not bring the matter to a final resolution. Vice Chair Beatty’s decision, however, clarified that Core One may properly adduce evidence to argue both that Core One initially terminated the employee due to a lack of work and also may adduce evidence of the employee’s alleged misconduct during the termination meeting in support of its allegation of just cause.
The decision in Core One signals to unionized employees and employers that employers will not be held to a standard of perfection in terms of the reasons given for termination in a termination letter. Common sense will prevail. Moreover, the decision also stands as a reminder to employees that there will be consequences where they engage in serious misconduct at the time of termination. As Vice Chair Beatty commented, employees are not entitled to a “free pass.”
If you are an employer or employee in the unionized workforce and involved in a termination, it is important to hire a lawyer to help you navigate the more complex legal issues that may arise.
The above post is general information about this specific case.
To arrange your free confidential 30 minute phone consultation make sure to contact us today.