a-c

APPLYING THE LAW 1. Joe works at a large unionized hotel as a restaurant and the wine is too good to waste." The investigator re- server. He's been employed there for three years and ports the incident to the employer, including the video, has no record of prior discipline. He is 40 years old and and the employer terminates Joe. The union files a the sole income earner for his wife and two children. grievance alleging the employer had no just cause for The employer was experiencing problems of pilferage, termination. At the arbitration hearing, Joe is apologet- including theft of alcohol, food, and toiletries. There- ic and admits what he did was wrong and stupid. fore, it hired a private investigator to pose as a custo- a. If you represented Joe and the union in this griev- dian. The "custodian" roamed around looking for ance, what argument(s) would you make? employee misconduct, occasionally filming suspicious b. What would the employer argue? activity on his phone. One night, Joe returned to the c. If you were the arbitrator, would you reinstate Joe? kitchen with a half-drunk expensive bottle of wine that If so, would you substitute a lesser penalty? What a customer had left. Joe knows that he is supposed to would that penalty be? Would it make a difference pour the wine down a drain and send the bottle to re- to you if Joe had ten years' discipline-free service cycling. However, Joe instead offers to give the bottle rather than just three years? The facts in this scen- of wine to the "custodian" and tells him he can have it ario are based on the decision Unite Here Local 75 v but he should pretend to be taking it out to trash in Fairmont Royal York Hotel, 2012 CanLll 3871 (Ont. case he is seen. The custodian thanks him and secretly LA). Read the decision to see how the arbitrator records the next exchange in which Joe says, "I decided. shouldn't be doing this, but you seem like a nice guy