AWOL Court Clerk Justly Suspended

Written by Daniel Standing, LL.B., Content Editor, First Reference Inc.

A decision of the Ontario Grievance Settlement Board, 2023 CanLII 115148 (ON GSB), confirms that dishonesty, attempts to shift blame and a lack of remorse are not a winning combination of factors for an employee seeking to overturn a disciplinary measure. In this case, the employee went AWOL for personal reasons, giving the employer a clear path to just cause for imposing discipline.

Background

The grievor worked as a court clerk and registrar. The job entailed working closely with a judge, endorsing information, and tracking and securing exhibits. Essentially, whenever the judge was in the courtroom, the clerk was also expected to be there. Should an emergency arise, the clerk had the responsibility of pushing a panic button and calling 911. Clearly, there was a strong safety component to the clerk’s presence.

On the day in question, the clerk had a personal matter to attend to at 1 p.m., his normal lunch time. But court schedules can be unpredictable, and this day, a matter was to be brought into court at 1 p.m. for a brief period. This created a problem for the employee, who, unbeknownst to anyone else, was dead-set on leaving at 1 p.m. for his errand. Against policy requiring notice as early as possible, he hadn’t bothered to notify his supervisor that morning or make any arrangements for coverage during his absence. Then, just minutes before 1 p.m., he sent his supervisor word that he needed to be relieved.

While court was in session, he got up and was on his way out when the judge asked him if he was being replaced. He lied and assured her he would be, leaving the judge to do the clerk’s tasks. Then he went to his supervisor’s office and created a ruckus, yelling, flailing his arms and blocking the door. For this behaviour, he was suspended for seven days, prompting him to file a grievance.

The Board’s decision

Despite some differences in the witnesses’ accounts, there was enough basis for the Board to find the employee’s behaviour was inconsistent with the employer’s respectful workplace policy. It was also insubordinate.

Furthermore, the significant mitigating factor of 13 years on the job without incident were not enough to offset the severity of his one-time misconduct. The Board focused on arbitral direction not to fine-tune an employer’s choice of discipline if the measure is within the range of reasonableness. Here, the Board said it fell within the range, but it might have been reduced had the grievor taken any responsibility for what happened instead of shifting the blame onto his supervisor.

Key takeaways

It’s surprising to read of a grievor who so brazenly flouts workplace rules, takes no responsibility for their actions and seeks to overturn the discipline that was imposed.

The crucial lesson here is that a combination of dishonesty, blame-shifting and a lack of remorse can significantly undermine an employee’s ability to challenge disciplinary measures. In this case, the employee’s absence without notice and disruptive behaviour led to a justifiable seven-day suspension. The takeaway for employers is the importance of consistent enforcement of workplace policies, especially when safety considerations are involved.

Additionally, when meting out disciplinary measures, employers should remain within the range of reasonableness for a given offence based on its unique factual matrix, including any aggravating and mitigating factors.