The employer and the union agree on the following statement of fact:

The grievors were classified as linemen and were sent on a special assignment in September 2019, in the Pembroke Sound area approximately 60 miles from their home location. The assignment involved working on a project to upgrade customer service in rural areas. When in Pembroke Sound, the grievors' traveling and living expenses were paid by the employer. During the night of September 26 - 27, the grievors caused damage to a Police cruiser by kicking one of its doors, kicking in the trunk, and twisting and bending signal lights. The cruiser was parked behind other cars on a service station lot on one of the principal streets in Pembroke Sound.

At the time in question, the grievors were off duty and were not wearing any uniform clothing supplied by the employer that would identify them with the employer, nor were they operating any vehicles owned by the company. As a result of the incident, the grievors were arrested, taken into custody by the Pembroke Sound police, and charged with criminal offences. The grievors were scheduled to report for work on the morning ofSeptember 27 butdid not do so as they were in police custody from the time they were arrested until 1:30p.m. on September 27.

Later in the afternoon of September 27, the grievors were suspended by a company official pending further investigation of the incident. Following a meeting onOctober1 between management and the grievors at which the grievors admitted responsibility for the incident, the grievors were suspended for five working dayswithout pay.

The incident received news coverage by radio, television, and newspaper over about a100-mileradius. However, the name of the employer was not mentioned. Several charges were laid against the grievors, which were subsequently dropped after the grievors paid for the damage to the police cruiser. After the suspensions, the employees were reassigned to the project on which they had been working at the time of the incident.

The employertook the positionthat as a major public utility with a high public profile, its reputation must always be of great concern to it. Accordingly, the employer is entitled to take very seriously any employee conduct that would damage that reputation. While it was true the grievors were not on duty on a company project, their living expenses were being paid by the company, and in a large sense they represented the company.The employer argued that the fact the employee was not particularly connected with his employer by the news media did not prevent the employer from being associated with the employee as a result of other particular facts of the case, including the serious and flagrant nature of the offence and the widespread publicity surrounding it.

The union argued that there was no evidence that the grievors had acted in a manner incompatible with the discharge of their duty to the company; that their behaviour had rendered them unable to perform their duties satisfactorily; that their behaviour would lead to refusal or reluctance or inability of other employees to work with them; or that their conduct had placed any difficulty in the way of the company properly carrying out its functions of efficiently carrying out its works and efficiently directing its working forces.Thus,the case comes down to the single question of whether the grievors' behaviour had harmed the company's reputation or was otherwise injurious to the interests of the employer.

A general rule of arbitrationis thatan employee's life is his or her own and that what he or she does away from work is his or her own business and is no affair of the employer. However, there are several exceptions to this general rule.

TwoCanadian labour arbitration decisions setout principles that helpdetermine this type of issue.The cases areRe U.A.W., Local 195 and Huron Steel Products Co. LtdandReMillhavenFibresLtd.,MillhavenWorks, and Oil, Chemical & Atomic Workers Int'l Union, Local 9-670.

The following statement from the first case is often cited:

It has been held in many arbitration cases that under normal circumstances an employer is only properly concerned with an employee's due and faithful observance of his duties on his job. However, no hard and fast rule can be laid down, and in each case the determination of three questions of fact will determine the issue. These are:

1. Was the employee's conduct sufficiently injurious to the interests of the employer?

2. Did the employee act m a manner incompatible with the due and faithful discharge of his duty?

3. Did the employee does anything prejudicial or likely to be prejudicial to the reputation of the employer?

If one or more of the above questions must be answered in the affirmative on all the evidence, then the company is properly concerned with the employee's conduct regardless of whetheritoccurred on or off the company property or m or out of working hours, and depending on the gravity of that conduct, the company will be justified in taking appropriate disciplinary action.

In the second case,MillhavenFibres, the arbitrator said:

If the discharge is to be sustained on the basis of a justifiable reason arising out of conduct away from the place of work, there is an onus on the Company to show that:

1. the conduct of the grievor harms the Company's reputation or product

2. the grievor's behaviour renders the employee unable to perform his duties satisfactorily

3. the grievor's behaviour leads to refusal, reluctance or inability of the other employees to work with him.

4. the grievor has been guilty of a serious breach of the Criminal Code and thus rendering his conduct Injurious to the general reputation of the Company and its employees.

5. places difficulty in the way of the Company properly carrying out its functions of efficiently managing its Works and efficiently directing its working forces.

Ina subsequent case involvingAir Canada, the Arbitrator added that with respect to the factors set out inMillhavenFibres: "It is my interpretation that it is not necessary for a company to show that all five criteria in theMillhavenFibrescase have followed on the employee's conduct; rather, any one of the consequences named may warrant discipline."

Question:

Based on the case above,

1. Did the employee does anything prejudicial or likely to be prejudicial to the reputation of the employer?"
2. Was the employer able to prove that the conduct of the grievor harms the Company' s reputation or product;
3. Was the employer able to prove that the grievor' s behaviour renders the employee unable to perform his [or her] duties satisfactorily;
4. Was the employer able to prove that the grievor' s behaviour leads to refusal, reluctance or inability of the other employees to work with him;
5. Was the employer able to prove that the grievor has been guilty of a serious breach of the Criminal Code and thus rendering his conduct injurious to the general reputation of the Company and its employees.
6. Was the employer able to prove that [the conduct] places difficulty in the way of the Company properly carrying out its functions of efficiently managing its Works and efficiently directing its working forces."
7. A reasonable and fair-minded member of the public, if apprised of all the facts, [would] consider that the grievor' s continued employment would so damage the reputation of the Employer as to render that employment untenable?"