Canadian Employment Law Today

CELT May 15 2013.qxp:celt 467.qxd 13-05-02 9:49 AM Page 5 CANADIAN EMPLOYMENT LAW TODAY CASE IN POINT: WRONGFUL DISMISSAL Employees couldn't explain themselves before dismissal ...continued from page 4 though he wasn't busy at his own station. Hicks and Wiebe continued to work at their jobs for several days while NAV Canada investigated and held a disciplinary hearing on May 30. NAV Canada determined both men vacated their positions and left their stations unattended for a significant period of time, which showed "a serious lack of judgment and a disregard of the company's operational procedures, code of conduct and company mission statement." In addition, neither of them apologized or expressed remorse for their actions or the safety risk they caused. The manager said he "remained perplexed as to how they could have exhibited such an extraordinary lack of common sense less than 24 hours after the staff meeting." Hicks' and Wiebe's employment was terminated effective June 8, 2011. Hicks felt he was denied an opportunity to participate in the disciplinary meeting, resulting in him being unable to apologize. He claimed the manager told him "we had a script" to follow. The day after his termination, he sent a letter of regret to NAV Canada requesting his dismissal be reconsidered. He said there was a misunderstanding of the procedures required for vacating a position and he used his best judgment in finding the right time to take a break when there was no anticipated air traffic — he hadn't received an estimate on the aircraft that did arrive during his break. Hicks also pointed out he had received a letter of commendation in 2004 and he had been a good employee. Hicks later sent a letter of apology to a NAV Canada executive expressing regret that his actions caused a breach of trust. He also acknowledged he should have arranged with Wiebe for constant coverage of their stations, or at least switched the speakers on during their breaks. Wiebe also wrote a letter of apology after his termination, admitting his actions "fell well short of the required standard of service" for the Kenora Flight Service Station. He said he had learned his lesson and he was capable of regaining NAV Canada's trust. He agreed he should have arranged with Hicks to keep constant coverage on both desks or called the manager to ask how to handle his break. The employees 'seriously hobbled the employment relationship' but had good employment records over many years. The arbitrator noted the collective agreement between NAV Canada and the union stipulated that "generally, discipline is intended to correct undesirable behaviour or conduct and, where appropriate, shall be progressive in nature." Therefore, misconduct would have to be very serious to skip progressive discipline and jump right to dismissal. Misconduct was willful but not serious enough for dismissal The arbitrator also pointed to NAV Canada's manual of operations for air traffic services, which outlined procedures for vacating a position, including combining positions to ensure continuous provision of services. Given both Hicks and Wiebe were "fully trained and seasoned professionals," it was unlikely they both forgot to follow a mandatory procedure and more likely their actions were intentional, said the arbitrator. "There is significant evidence to support a determination that (Hicks and Wiebe's) actions of May 18, 2011, were a willful, purposeful and complicit protest against management's evident plan for the future to not always protect the floater/weather position as it had in the past," said the arbitrator. The arbitrator found there were miti- gating factors that should be considered when determining if dismissal was warranted. Both employees had been employed with NAV Canada for almost 10 years with a good record and this appeared to be "an isolated incident over the course of their employment history." However, the arbitrator also found there was an element of premeditation to their misconduct. Again, it was unlikely they would both forget to follow procedure in turning their speakers on or ask the other to monitor their station while away from the desk. It was likely their actions were a reaction to the meeting from the previous day when they weren't given a satisfactory answer on covering breaks without a floater/weather position coupled with the manager making them shorthanded by taking staff with him to the meeting. The arbitrator found the manager had a role in the situation, as his "questionable lack of direction" at the meeting caused disenchantment among the staff and his use of a "script" in the disciplinary interviews didn't give Hicks and Wiebe a chance to defend themselves. Both men eventually apologized for their actions after their dismissal, but they might have done so earlier had they been given the chance, said the arbitrator. The arbitrator found misconduct of Hicks and Wiebe "seriously hobbled the employment relationship," but when put in light of their service to NAV Canada, it wasn't enough to abandon the principle of progressive discipline. NAV Canada was ordered to reinstate both men with lengthy suspensions — time served to the date of the hearing (six months) for Hicks and 120 days for Wiebe — with Hicks' longer suspension reflecting him being the first to abandon his post and purposely ignoring chatter from Wiebe's headset. CELT For more information see: ■NAV Canada and CAW, Local 2245 (Hicks), Re, 2011 CarswellNat 6560 (Can. Arb.). Published by Canadian HR Reporter, a Thomson Reuters business 2013 5

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