Demotion As Discipline

Previously printed in The Lawyer’s Daily, a LexisNexis Canada publication.

In the recent decision of Coquitlam Public Library v. Canadian Union of Public Employees, Local 561 (L. Levesque Grievance) [2021], arbitrator Christopher Sullivan reinstated the grievor, substituting a permanent demotion in place of termination.

Background

Lisa Levesque was with the employer for 25 years, working her way up from an entry-level position to one of the most senior bargaining unit positions in the employer’s workplace.

The only blemishes on Levesque’s record arose in the months leading up to her termination. She was given a written warning for failing to follow procedure regarding an unconscious patron and was given a one-day suspension for failing to follow procedure regarding a security breach.

In the aftermath of the one-day suspension, multiple employees working under Levesque’s supervision brought forward complaints about her management style, work ethic and treatment of employees.

At a meeting intended to address these complaints, Levesque denied the allegations made by her co-workers. The employer viewed this as dishonest conduct and a fundamental breach of trust that could not be restored. The employer identified Levesque’s dishonesty as being the final deciding factor in her termination.

Levesque alleged unjust discharge, forming the basis of this award.

Decision

Sullivan framed his analysis of the grievance within the three-question inquiry in Wm. Scott & Co. (Re), [1976] B.C.L.R.B.D. No. 98:

(1) Did the grievor’s conduct give rise to just cause for the imposition of some form of disciplinary action?
(2) Having regard to all the circumstances surrounding the grievance, was the discharge excessive?
(3) If excessive, what should be substituted as just and equitable?

In his analysis of the facts, Sullivan acknowledged the “culpable poor work performance” and “poor behaviour” of Levesque, emphasizing that she was a “poor supervisor who could not be counted onto perform the duties of her position” (page 24). Despite the clear finding that Levesque’s actions warranted disciplinary action, Sullivan found that a discharge was excessive. Consequently, he imposed a disciplinary demotion. Usually a disciplinary demotion is time limited. In this case, Levesque was demoted indefinitely, and without back pay.

Also of interest was the evaluation of Levesque’s dishonesty in her dealings with the employer. Sullivan relied on the concept of a “continuum of seriousness” when assessing dishonest conduct. He held that while Levesque’s dishonesty was of a serious nature, it was not at the most serious end of the continuum.

In making this determination, Sullivan acknowledged that Levesque was entirely unaware that the purpose of the meeting was to address complaints against her. He recognized that being caught completely off-guard with criticism understandably resulted Levesque being defensive. While this did not excuse Levesque’s dishonest conduct, it did provide context to her actions.

Further to Levesque’s unawareness of claims against her, Sullivan considered a clause in the collective agreement requiring notice to be given to an employee upon any “major expression of dissatisfaction” within 10 days. It was noted that the prevailing arbitral approach to this type of language “recognizes an employer is first entitled to investigate the matter to determine whether a complaint constitutes a ‘major expression of dissatisfaction’ before the ten-day clock commences” (page 6). Therefore, while Levesque was caught off-guard by the allegations against her, the employer did not breach the collective agreement by investigating the allegations first.

In addition to recognizing Levesque’s inadequate job performance and dishonesty, Sullivan found that Levesque failed to mitigate her losses. In response to Levesque’s excuse that the COVID-19 pandemic affected her ability to obtain a new job, Sullivan noted that there were plenty of jobs with someone of Levesque’s qualifications, and that she failed to apply to any of them. As a result, she was issued no back pay upon reinstatement.

Takeaways

While honesty is an implied term of every employment contract, dishonesty exists along a continuum. The severity of dishonest conduct must be considered when imposing appropriate discipline.

Employees may have a right under their collective agreement to be informed of complaints against them within an ascribed number of days; however, the clock will only be triggered after the employer has had time to investigate the complaints.

The COVID-19 pandemic does not provide employees with an automatic excuse for a failure to mitigate; evidence must be provided to show the pandemic impacted their ability to find work. Decision makers will not assume the job market in any particular field is slow due to the pandemic.

Working primarily as a litigation lawyer with Roper Greyell, Mike Hamata assists employers with discipline and policy grievances, wrongful dismissals, employment standards complaints and collective bargaining. E-mail him at mhamata@ropergreyell.com. Teodora Bardas is an articled student at Roper Greyell LLP. She is interested in all areas of workplace law, including employment, labour and workplace human rights law.