- June 10, 2021
- Unfair Labour Practices
This matter arose out of a termination grievance, filed by IATSE on November 9, 2011. The Grievor was terminated as a result of a so called culminating incident following a number of incidences characterized by the Employer as insubordination or inappropriate conduct. The culminating incident occurred on October 11, 2011 when the Grievor allegedly attended a staff meeting, yelled at the employer and left the premises. Although she returned to complete her work to at the evening performance, the Employer alleged that she refused to provide the employer with the password to her work computer. Following the incident, the Grievor was immediately suspended with pay and then subsequently terminated.
IATSE grieved the termination on two grounds. Firstly, IATSE argued that the termination was a second disciplinary response to the same incident and secondly, IATSE argued that the Employer did not have just cause to terminate the Grievor.
With respect to the “double jeopardy” argument, the Arbitrator held that the termination was not a second disciplinary response. The Arbitrator held that the suspension was akin to a “suspension pending an investigation”. He held that the Employer did not make its final decision to terminate the Grievor until after a meeting where the Grievor had an opportunity to provide a response.
The Arbitrator concluded that the Employer had just cause for discipline but that termination was excessive. He therefore substituted termination with a 21 day suspension. In so doing, the Arbitrator concluded that that the Grievor did not intentionally refuse to provide the password to her work computer which the Arbitrator held was a key factor in the Employer’s decision to terminate. Additionally, the Arbitrator held that in order to rely on a pre-collective agreement employment record, the Employer has to prove the earlier events alleged. However, the Arbitrator held that the Grievor’s behavior at the meeting, leaving the workplace and returning only on particular conditions amounted to a serious case of insubordination. The Arbitrator noted that while the Grievor’s conduct did not permanently damage the relationship between the Grievor and the Employer, he held that “any recurrence of misconduct may well provide the Theatre with just cause to terminate her employment.”