The Arbitrator Refuses to Tinker With Minimal Punishment

Daniel Standing LL.B., Editor, First Reference Inc.

In classic fashion, arbitrator Kim Bernhardt in 2023 CanLII 10437 determined the punishment met the crime after reviewing the case’s mitigating and aggravating factors. A one-day suspension for insubordinate comments seems quite minimal, yet the grievor alleged that progressive discipline should have been applied, resulting in even lesser discipline. As the arbitrator would explain, that’s not how it always works.

Background

The employee had been the town’s urban inspection designer for about 13 years. There was no discipline in his file, but there were two recent letters about him sending inappropriate Emails to colleagues. He had put in two separate complaints concerning his then-manager and then-director’s conduct, questioning their competence and professionalism. The town hired external investigators and learned the allegations were unfounded.

Undeterred and under the guise of “just seeking answers,” the employee continued to accuse his former manager of impropriety in Emails to others. When he found out, the former manager complained. The town responded by suspending the employee for a day, saying it was unprofessional and disrespectful for him to continue raising the allegations. Ultimately, the town said the employee was being insubordinate.

What the arbitrator decided

The arbitrator found the employee’s accusatory and threatening tone ran counter to his claim that he was simply seeking clarification.

Furthermore, she said, the two previous warnings, whether they were disciplinary or not, made the employee aware that such behaviour could be subject to discipline, but he went ahead and made the comments anyway.

Previous arbitral decisions provided some guidance. In one, it was decided that when an employee persists in making unfounded allegations against a manager in the face of clear evidence to the contrary, it is insubordination. Another case added that even if harm is unintended, recklessness about whether harm ensues constitutes insubordination.

The arbitrator determined the employee deserved to be punished, but how much depended on the mitigating and aggravating factors matrix. The employee had approximately 14 years of service with no performance issues. Had those two significant factors not been present, the arbitrator said the penalty imposed might have been a longer suspension. In the circumstances, she said the one-day suspension was a “reasonable and measured response,” and not one that an arbitrator should “tinker with.”

Key takeaways for employers

Imposing a proportionate and fair penalty for workplace wrongdoing is the best way to make it stick. Sometimes this is more art than science, but Arbitrator Burkhardt’s decision lays the groundwork for the type of deliberations employers should undergo before imposing discipline.

Careful consideration of an employee’s past service and performance, the seriousness of the wrongdoing, and recent past warnings are essential elements of this review.

This case indicates that an employer is not always required to begin discipline at the lowest step, which is typically a written warning. So long as the chosen measure “falls within the realm of a reasonable disciplinary range,” it should be safe from tinkering