“Fire Me Once, Shame on You – Fire Me Twice ……!!” Arbitrator Finds Post-Discharge Termination is not Void Ab Initio

In a recent decision, successfully argued by Bird Richard, Arbitrator Frumkin held that an employer could terminate an employee who had already been discharged.

The Grievor, a letter carrier, had been terminated for abusive conduct to a customer. At the disciplinary meeting, after being told that he was discharged and handed the discharge letter, the grievor assaulted his supervisor. In a subsequent letter a few days later, the employer advised the grievor, in essence, that in the event he were to be re-instated as a result of arbitration of the first discharge, he was fired for a second time. He later plead guilty to a criminal assault charge.

The initial discharge was successfully grieved. In December 2011, the arbitrator overturned the discharge, substituting a three month suspension and an order for reinstatement.

In response to the award ordering reinstatement, the employer confirmed by letter that the grievor would not be reinstated, given that he had been again terminated eighteen months earlier.

Counsel for the Union argued that it was not open to the employer to discharge the grievor a second time when they did, as he had already been discharged and was therefore no longer employed by the employer at the time of the second discharge. The Union argued that because the conduct occurred after the grievor had been discharged, he was beyond the reach of the employer’s disciplinary authority.

The Union relied on decisions where arbitrators had held that a union official could not be discharged when conducting union-related activities during a leave of absence from their employer or after they had been terminated by their employer. The Union also argued that the employer could only rely on post-discharge conduct in the context of the initial discharge to request that the arbitrator not reinstate the grievor.

The arbitrator rejected this analogy given that the grievor was not a union official, and the misconduct did not take place during union-related activity. The arbitrator concluded that “where there is no union dimension attaching to the misconduct, the employee, or discharged employee, may be subject to discharge for post-discharge misconduct, where circumstances warrant.”

The arbitrator also noted that the grievor was a de facto employee at the time of the second discharge, given that he had been retroactively reinstated by the first award.

The arbitrator stated that there were two ways which an employer could have relied upon the assault. While it could not have relied on the conduct to support the first discharge per se, it was open for the employer to rely upon it with respect to whether or not the arbitrator should exercise his discretion to reduce the penalty on the first matter. In this case, the employer chose not to do this, and the arbitrator concluded that there was nothing in the case law or the collective agreement which precluded the employer from treating the grievor’s post-discharge misconduct separately from the misconduct it had relied upon for the purposes of the initial discharge. Rather, all that was required was that the employer advise the employee, in accordance with the collective agreement, of its intention to discharge the employee in the event that the grievance against the initial discharge decision succeeded.

The arbitrator therefore held that a second discharge was possible where post-discharge misconduct occurred.

This is an important decision for employers where a post-termination event occurs, or where evidence of misconduct comes to the attention of the employer post-termination. An employer has an option of relying upon it going to remedy in respect of the termination, or as an independent ground warranting discipline, including termination for the event itself in the event that the initial termination is not upheld at arbitration.