Chapter 36 - Grievance, Labour Arbitration and Just Cause for Discipline in Unionized Workplace

Joe works at a large unionized hotel as a restaurant server. He's been employed there for three years and has no record of prior discipline. He is 40 years old and the sole income earner for his wife and two children. The employer was experiencing problems of pilferage, including theft of alcohol, food, and toiletries. Therefore, it hired a private investigator to pose as a custodian. The "custodian" roamed around looking for employee misconduct, occasionally filming suspicious activity on his phone. One night, Joe returned to the kitchen with a half-drunk expensive bottle of wine that a customer had left. Joe knows that he is supposed to pour the wine down a drain and send the bottle to recycling. However, Joe instead offers to give the bottle of wine to the "custodian" and tells him he can have it but he should pretend to be taking it out to trash in case he is seen. The custodian thanks him and secretly records the next exchange in which Joe says, "I shouldn't be doing this, but you seem like a nice guy and the wine is too good to waste." The investigator reports the incident to the employer, including the video, and the employer terminates Joe. The union files a grievance alleging the employer had no just cause for termination. At the arbitration hearing, Joe is apologetic and admits what he did was wrong and stupid.

a. If you represented Joe and the union in this grievance, what argument(s) would you make?

b. What would the employer argue?

c. If you were the arbitrator, would you reinstate Joe? If so, would you substitute a lesser penalty? What would that penalty be? Would it make a difference to you if Joe had ten years' discipline-free service rather than just three years? The facts in this scenario are based on the decisionUnite Here Local 75 v Fairmont Royal York Hotel,2012 CanLII 3871 (Ont. LA). Read the decision to see how the arbitrator decided.