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Wrongful Dismissal




Arbitrator Refuses to Reinstate Grievor even after Finding of Unjust Dismissal

One element of unionized employment which distinguishes it from typical individual employment is that the normal remedy for a union member who is unjustly dismissed is reinstatement, while an individual employee in a non-union setting will likely receive only monetary damages in the same situation. Principles of labour law recognize the inherent value in a collective bargaining job, and arbitrators therefore strive to reinstate unjustly terminated workers.

It is a rare occasion for an arbitrator to find that a unionized worker was terminated without just cause, and then to award damages in lieu of reinstatement, but a recent arbitration decision demonstrates the appropriate circumstances for that outcome.

In C.U.P.E. Local 1487 and The Scarborough Hospital, 2013 CanLII 16383 (ONLA) the Grievor was a 52 year old plumber with under 6 years of seniority, and a clean disciplinary record. The Grievor complained that a co-worker had made a threat against his physical safety but the employer was unable to substantiate the complaint. A number of people in the workplace got involved in an ongoing investigation and the situation generally. The Grievor went off on stress leave, and once medically cleared, the Employer attempted to return him to work. However, based on his views that the Employer had failed to properly investigate his claims, and fearing for his security, the Grievor refused. By this time the Employer had become entirely distrustful of the Grievor and his version of events, and vice-versa.

The Employer concluded that since the Grievor had, in their estimation, been perpetually dishonest since the time of his initial complaint, and was making serious false claims against the Employer, the employment relationship had been damaged beyond repair. Accordingly, the Hospital terminated the Grievor for just cause.

The parties entered into a long and costly arbitration during which the Grievor testified that there had essentially been a conspiracy perpetrated against him by members of management, the union, and his colleagues. While the Arbitrator ultimately decided that the Hospital did not have just cause to terminate the Grievor, he also rejected the Grievor’s position that the Employer had been deliberately acting against him. In the circumstances, the Arbitrator held that it was appropriate to substitute a suspension for the termination. However, he refused to reinstate the Grievor and ordered compensation to be agreed between the union and the employer. In rejecting the Grievor’s request for reinstatement, the arbitrator noted:

“… more than two years later he has not been able to get past the deep feelings of injustice, persecution, and conspiracy which have afflicted him …

… Meyer is entitled to his opinions and I do not suggest that he has been wrong in his perception about everything which has happened. What however I am certain about is that the interests of no one, including him, will be served by his return to the Hospital. …”

It is only in the most extraordinary circumstances that an unjustly dismissed employee will not be reinstated to work. Such situations typically require an irreparable breakdown of the employment relationship in which neither party would stand to benefit from reinstatement.

The lawyers at CCPartners are experienced in advising employers in unjust dismissal complaints and can help you determine the appropriate course of action considering, for example, the likelihood of a terminated employee being reinstated.

Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.



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