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Issue link: https://digital.hrreporter.com/i/1287527
September 14, 2020
not discipline or dismiss an em-
ployee except for just cause."
On the worker's first day, the
division manager sent an intro-
ductory email that incorrectly
stated her educational back-
ground. The worker said in the
presence of a few other employ-
ees: "Who is this guy?" and "He's
got it all wrong." A supervisor was
shocked since the ABO position
required tact. The worker's su-
pervisor said that her comments
were inappropriate as they could
be taken as being negative.
On July 19, 2018, the worker
sent an email about late inspec-
tion applications and two em-
ployees who were responsible for
assigning files took it as a veiled
criticism. The worker's supervi-
sor coached her on teamwork
and relationship building, and the
worker apologized to the employ-
ees.
Two months later, a BO con-
densed some inspection files and
asked the worker to put away the
folders, but the worker replied:
"I don't clean up anyone's mess."
Her supervisor stressed the im-
portance of working with her col-
leagues and not taking things per-
sonally. The worker apologized to
the BO.
Soon after, a BO received a
complaint about the worker's
"unprofessional and heavy-
handed" manner when inspect-
ing a pool. The worker had left an
order to put up a fence within 24
hours and she said she didn't in-
tend to cause offence but it was a
safety issue. The supervisor told
the worker to be professional and
to "be nice when delivering bad
news" to a property owner.
In October, the worker investi-
gated a complaint about a rental
unit. The landlord indicated that
he would resolve the issues short-
ly, but when the worker returned
for a second inspection she found
that several things hadn't been
addressed. The landlord consid-
ered them to be minor and they
ended up arguing with raised
voices. The worker reported to
her supervisor that the owner had
started yelling at her and she had
gotten upset and left.
At an information meeting, the
worker acknowledged that she
could have handled the situation
differently. Management told her
that her employment may be in
jeopardy and they would review
the incident and their previous
concerns.
On Nov. 7, the municipal-
ity terminated the worker's em-
ployment because she had "not
demonstrated the behaviours
required by the employer in the
performance of your duties." The
union argued there wasn't just
cause as required by the collective
agreement.
The arbitrator noted that
the employer's authority to
terminate a probationary em-
ployee depended on appropri-
ate supervision and reasonable
standards. It appeared that the
worker received minimal train-
ing and coaching — the worker
performed the pool and apart-
ment inspections on her own
only a few months after she
started and she only received a
few coaching sessions about her
communication.
"Neither [training or super-
vision] appeared to me to be
adequate or appropriate to the
training of an employee perform-
ing a job that the employer itself
recognized was difficult," said the
arbitrator.
The municipality was ordered
to reinstate the worker with com-
pensation for loss of pay and ben-
efits.
Reference: NSUPE, Local 13 and Halifax (Regional Municipality). Augustus Richardson — arbitrator. Andrew Gough
for employer. Nancy Elliot for employee. Aug. 10, 2020. 2020 CarswellNS 489
Training, supervision mandated by agreement
Charges not strong enough for firing: Arbitrator
who have criminal convictions are
terminated.
On Aug. 12, 2017, the worker
was off duty and attended a wed-
ding reception for someone with
whom he played ball hockey. He
drank five or six beers that eve-
ning so he called a tow truck to
take him and his vehicle home.
As the worker was waiting for
the tow truck, someone insulted
him. The source was another ball
hockey player who had punched
the worker's father at a game six
years earlier. This had caused a rift
between their families.
The worker replied with an in-
sult of his own and they had a brief
physical altercation. The worker
punched the other man, who told
a police officer who saw the alter-
cation that the punch was unpro-
voked while the worker said it was
in self-defense. The worker was
charged with simple assault.
The next day, the worker ad-
vised the regional sheriff of the in-
cident. He described it as "a wres-
tling event broken up by a police
officer" and maintained that he
didn't do anything wrong. Later
that day, the victim called and pro-
vided his version of events, which
differed from the worker's.
The worker then told the re-
gional sheriff he wouldn't be
pressing charges and would let
the matter go if the victim did as
well. His account differed from his
original description of the event.
In addition, the worker revealed
that he had called the police offi-
cer who had broken up the alter-
cation on his personal cellphone
to give him more information,
which also concerned the regional
sheriff.
On Aug. 18, the DPS reassigned
the worker to administrative du-
ties pending an investigation. The
worker was convicted on June 22,
2018 of simple assault, though
the sentencing was put off. Three
days later, the DPS terminated the
worker's employment for "your
conviction and the unprofessional
behaviour in contacting the of-
ficer involved, which constitutes
a blatant disregard for the code of
conduct, and given your position
as deputy sheriff, we have con-
cluded that there is a connection
between the off-duty conduct and
your employment."
There was no mention of the
conviction in the media, though
some lawyers and members of
the judiciary mentioned it to the
regional sheriff. In October, the
worker received a conditional dis-
charge.
The adjudicator noted that
there was some public knowledge
of the charge based on comments
by lawyers and the judiciary, but
there was no media coverage and
no proof of harm to the DPS's rep-
utation.
The adjudicator found that
the charge of simple assault and
the fact it stemmed from a single
punch put it low on the scale of
seriousness, in addition to the fact
it was a first offence. The judge
demonstrated that by giving the
worker a conditional discharge,
said the adjudicator.
The adjudicator also found that
what the DPS considered a lack
of transparency could be attrib-
uted to the worker's perception
that was influenced by alcohol —
which likely caused the incident
in the first place. As for the call
to the police officer, there was no
evidence the worker was trying to
gain an advantage. Though it may
have been inappropriate, there
was no evidence of improper mo-
tives, said the adjudicator.
The adjudicator determined
that termination was excessive.
The DPS was ordered to reinstate
the worker with a 30-day suspen-
sion and compensation for any
lost wages.
Reference: NBUPPE and Department of Public Security. John McEvoy — adjudicator. Michelle Brun-Coughlan for
employer. Sophie Landry Mockler for employee. April 20, 2020. 2020 CarswellNB 348