Post-Discharge Termination Upheld on Judicial Review

In a recent decision, successfully argued by Bird Richard, the New Brunswick Court of Queen’s Bench upheld a decision by Arbitrator Frumkin, in which he held that Canada Post could terminate an employee who had already been discharged.

Ronald LeBlanc, a letter carrier, was 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, the employer advised the grievor that, in essence, in the event he were to be reinstated as a result of the arbitration of the first discharge, he was fired for a second time. He later pled guilty to a criminal assault charge.

In December 2011, the initial discharge was successfully grieved. The arbitrator substituted 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.

At the hearing before the arbitrator, counsel for the Union argued that it was not open to the employer to discharge the grievor a second time, as he had already been discharged and was therefore no longer employed by the employer at the time of the second discharge. The Union relied on decisions where arbitrators had held that a union official could not be discharged after their employer had terminated them. 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.

As we have reported in a previous issue of EMPlawyer’s Update, the arbitrator rejected the Union’s analogy, concluding 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 stated that the grievor was a de facto employee at the time of the second discharge, given that the first award had retroactively reinstated him.

The arbitrator stated that there were two ways in 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 to the employer to:

1. rely upon it with respect to whether or not the arbitrator should exercise his discretion to reduce the penalty on the first matter; or

2. treat the grievor’s post-discharge misconduct separately from the misconduct it had relied upon for the purposes of the initial discharge.

All that was required to exercise the second option was to advise the employee, in accordance with the collective agreement, of the employer’s intention to discharge him in the event that the grievance against the initial discharge decision succeeded.

The Union sought judicial review of the arbitrator’s decision before the New Brunswick Court of Queen’s Bench, arguing that the arbitrator’s decision was unreasonable because he had failed to follow the previous decisions of other arbitrators on which the Union had relied, and because the arbitrator had relied on a decision with very specific facts that were different than those in the grievor’s case.

The Court concluded that the arbitrator’s decision was reasonable. The case law raised by the Union did not have a sufficient correlation to the circumstances in the grievor’s case and thus was not binding. In addition, despite the fact that the arbitrator had mistaken the facts of one of the cases on which he did rely, the totality of his decision met the standard of reasonableness despite this error.

Ultimately, the Court upheld the arbitrator’s decision, finding that he was correct in concluding that, given the seriousness of the grievor’s misconduct, the employer had no choice but to advise the grievor that his actions were intolerable and that it intended to terminate him for a second time for this post-discharge misconduct.

This is an important decision for employers in cases where a post-termination event occurs, or where evidence of misconduct only comes to the attention of the employer post-termination. This decision of the Court confirms that an employer may rely on post-discharge misconduct as an independent ground warranting discipline for the misconduct, including termination, should the initial termination be rescinded at arbitration.