Daniel Standing LL.B., Editor, published by First Reference Inc.
One would expect that after beating up an older lady while at work, a terminated employee would show remorse for his actions and do whatever possible to get his job back. In United Parcel Service v Teamsters Local Union No. 213, 2021 CanLII 64789 (CA LA), we see the impact an employee’s trash talk about their employer can have on his or her potential reinstatement. After accepting an employee’s apology at face value and offering reinstatement, an employer may uncover evidence showing the employee cannot be trusted, allowing the employer to close the door on a return to the workplace.
Brian Trackl was a 39-year-old with 12 years of service as a UPS driver in Kelowna, BC. If you were at the local Pharmasave on May 13, 2020, you would have witnessed an argument between him and an older female Pharmasave employee, a slight lady who was about 20 years his senior, and someone he had clashed with in the past. That day’s argument was about a package that she wanted him to take back, which he refused to do. She put the package on his truck; he took it and dropped it on the ground. She approached him; he pushed her away. She swung at him; he punched her in the face.
Unsurprisingly, he was fired. The next critical facts arose on the day before Trackl’s grievance meeting. Several weeks had passed and, still angry over his termination, he texted a former colleague a photo of himself wearing a FedEx uniform along with the caption “Fuck UPS.” Then he texted someone else the same photo with the message, “UPS is toxic. Thinking of taking [a] leave of absence if I get the job back.” During a telephone grievance meeting the next day, Trackl seemed sincere when he expressed remorse for what happened at Pharmasave. Management thought he was “willing to turn it around,” so it offered him his job back by converting the termination to a one-month suspension. Everything seemed fine until the texts were leaked to management, who saw the texts as a sign that Trackl had not been honest during the termination meeting. As a result, it retracted the possibility of reinstatement.
The arbitrator’s decision
With his fate now in the arbitrator’s hands, Trackl’s plight was rendered even more tenuous because of his disciplinary record of two recent and serious suspensions for misconduct, both of which involved a failure to abide by UPS policies.
The first legal hurdle was the effect of settlement privilege on what Trackl said during the grievance meeting. Under the normal rule, such discussions are confidential because it is good when people have “full, frank and free” discussions about settlement. An exception arises, however, if the evidence about settlement discussions has some arguable relevance to an issue other than the merits of the dispute which was being discussed. In other words, if it relates to some new misconduct, it can be admitted. In the arbitrator’s view, the employee could not hide behind grievance privilege in a situation where he “feigned sincerity […] in order to convince the employer to reinstate him.” Protecting that kind of dishonesty would undermine labour relations and trust between the parties.
What about the grievor’s expression of remorse at the grievance meeting? The arbitrator held that it related to the issue of dishonesty (the new act of misconduct) and was therefore admissible. The remaining question was whether it was so serious as to merit dismissal.
To answer this question, the arbitrator emphasized the importance of trust in employment relationships, particularly in cases where the employee works with minimal supervision, like Trackl in his UPS truck. UPS even had a policy on honesty in employment. At the hearing, Trackl admitted that his texts were unprofessional, yet they represented his true sentiments at the time. This cast significant doubt over some of the things he said during the grievance meeting, namely, that he only hit the Pharmasave employee lightly in self-defence.
The arbitrator was clear: this judgment was not about a fair penalty for the Pharmasave incident; it was about the texts being inconsistent with being sincerely remorseful. The arbitrator found that the grievor was deliberately dishonest. Trackl told the lie to get his job back. With Trackl’s admission at the hearing that he had a “hard time” following UPS policies and procedures, the arbitrator had enough of a basis to find that Trackl was not a good candidate for continued employment. When honesty and trust is no longer possible, the employer can discharge the employee.
Takeaways for employers
In a close case, an expression of remorse can tilt the balance in the employee’s favour toward reinstatement. As a sign of good faith, the employer might be inclined to believe a terminated employee’s story and offer reinstatement. This case highlights the impact of proof of a dishonest expression of remorse. If discovered on time, it can save the employer from welcoming a bad apple back among its ranks. The challenge is uncovering the evidence in the first place. To that end, taking a quick look at the individual’s social media accounts may not be a bad idea before offering reinstatement. It could turn out that the employee has said or done something that erodes the trust relationship the employer was prepared to restore.