Hospital Employees’ Union v Canadian Mental Health Association. June 11th, 2018

In every discipline case there are factors that weigh in favor of certain actions, and factors that bend the decision in the opposite direction. An arbitrator will weigh the relative significance and impact of each factor to determine whether the disciplinary action was appropriate, or whether discipline was warranted at all. Because this determination is fact-dependent, a factor that ultimately controls the outcome in one case may prove irrelevant or have the opposite effect in another.

The Grievant in this case was a Program Coordinator who ran the Employer’s mental health facility and programs. The role required the Grievant to maintain appropriate interactions with vulnerable individuals and to adhere to a set of specific codes of conduct. The Employer terminated the Grievant after an investigation proved the Grievant repeatedly engaged in unprofessional and inappropriate conduct which included:

• A romantic/sexual relationship with an individual who became a client. The Grievant claimed she was unaware of his admittance to the program.
• Befriending another client in a manner so unprofessional that is negatively impacted other clients, employees and the Employer’s reputation.
• Breaching the Employer’s medication protocol for the benefit of that client, forging his signature and tampering with official records.
• Disregarding the Employer’s directives during the investigation by gaining access to the premises through objectionable means, and removing files without authorization.

In challenging the termination, the Union pointed to several factors which, it believed, provided justification for a less severe disciplinary response. After weighing all the facts, the Arbitrator denied the grievance and upheld the termination, finding that those mitigating factors were not sufficient to outweigh the aggravating factors present in the case.

Mitigating Factor – No Prior Discipline
Disciplinary action is expected to be corrective in nature, not punitive. This means that discipline should only be imposed where warranted, and the employee should receive the lowest level of discipline needed to address the behavior. For this reason, most employers use a progressive approach to discipline, which gives the employee an opportunity to correct the behavior before harsher discipline is imposed. As a result, when an employee has not been previously disciplined, only the lowest degrees of disciplinary action are deemed appropriate.

There are exceptions. Where the conduct is particularly egregious, a progressive approach is neither appropriate nor warranted, and an employee’s clean disciplinary record will not be enough to bring him relief from discipline. The Grievant in this case had not previously been subjected to any discipline. The Union properly argued for a lesser punishment based on her clean disciplinary record, but this was not enough to swing the pendulum in favor of mitigation.

Aggravating Factor – Nature of the Misconduct
Infractions such as theft, assault and ethical violations are among the types of offenses for which progressive discipline will not be deemed an appropriate response. Employers are not required to tolerate or risk a repeat of such offenses or their consequences, and need not follow progressive discipline in these circumstances. In addition, the nature of the employer’s business, and/or employee’s role in the organization, may heighten the impact of their actions and the need for a truly ameliorative response.

Because the Grievant held a position of authority over vulnerable persons, her conduct “…was entirely unacceptable and inexcusable and is not mitigated by good intentions.” The Arbitrator noted: “There are sound reasons in psychiatric or psychosocial rehabilitation and recovery programs…to maintain boundaries between health care professionals and clients.” The Grievant willfully engaged in behavior that so clearly breached these boundaries as to make her unfit for continued service. Consequently, the nature of the conduct weighed heavily in favor of her removal. 

Mitigating Factor – Length of Service
Long service is normally a powerful mitigating factor in a disciplinary case. It indicates a history of satisfactory performance and signals a likelihood the employee could continue to meet the employer’s workplace standards and expectations in the future. It is viewed as a demonstration of the employee’s value and loyalty to the Employer, which calls for leniency when discipline is deemed necessary. However, there are circumstances in which long service can hurt a grievant’s appeal. This is because long service effectively eliminates certain excusable grounds for an employee’s failure to meet workplace standards, such as lack of awareness or understanding of the rules. In such cases, a lengthy employment history stands as an aggravating factor because the employee is deemed to have demonstrated awareness of and ability to meet expectations.

In the case at hand, the Grievant’s 18 years of service could not outshine her misconduct. On the contrary, her lengthy employment record helped to establish that she was keenly aware of the requirements of her position, the implications of her actions and the Employer’s rules. Where her long service would potentially have earned her the reward of continued employment, it instead made the impropriety of her actions even more inexcusable.

Aggravating Factor – Knowledge of the Rules
Knowledge of the employer’s rules and consequences for breaching them is required to establish just cause. Where this cannot be proved, a disciplinary action may be called into question. However, where the rule is known and reasonable, employees may be held accountable for failing to follow them. When the rule that has been contravened is crucial to the proper conduct of business, this consideration bears a heightened gravity. 

Upon her hire, the Grievant was presented with the Employer’s code of conduct. Being in a supervisory role, she was responsible for informing employees of and enforcing the Employer’s expectations throughout her employment. As a result, no case could be made that she was unaware of the rules or their significance. Ultimately, this tipped the scales in favor of harsher discipline.

Mitigating Factor – Management Inaction
If management is aware of some misconduct and fails to respond in a timely manner — or to respond at all — this tends to undermine the validity of any disciplinary action. It implies the conduct does not warrant discipline, that the employer has chosen not to enforce its policies, or else does not deem the activity to be of concern. Any subsequent attempt to impose discipline will be susceptible to challenge.

In this case, the Grievant’s former manager was aware of some of her activities but, inexplicably, did nothing about it and never addressed the matter with her. The Grievant’s misconduct continued for more than two additional years and was not dealt with until a new manager was hired. A delay as substantial as the one encountered in this situation would normally provide a powerful argument against imposition of any discipline, but it failed to bring relief here. The Arbitrator determined the former manager’s inaction “was not condonation” of the Grievant’s behavior, particularly since the misconduct “was sustained for a lengthy time.” The Grievant would retain full accountability for her actions.

Aggravating Factor – Uncorrected Behavior
As previously noted, the ultimate goal of corrective action is to bring about a change in the employee’s behavior such that additional discipline will not be necessary; where an employee has demonstrated a willingness and ability to respond to correction, this can be a mitigating factor should additional discipline be contemplated. However, where an employee has demonstrated an unwillingness or inability to respond to correction, it becomes a strong indicator for more severe discipline.

Our Grievant fell into the latter category. After learning of concerns held by clients and other employees, the Grievant’s manager had a talk with her about her behavior, reminded her of the expectations and workplace standards, and later provided them in writing. Rather than change her actions, the Grievant sought to justify them and continued to engage in conduct she knew to be unacceptable. Her failure to respond to corrective action carried significant weight, swinging the pendulum in favor of harsher discipline.

Weighing it All Up
The Grievant in this case had more mitigating factors in her favor than is typical in a disciplinary case, including her length of service, lack of disciplinary history and management’s failure to act. However, even taken together, they could not overcome the magnitude of the misconduct and its impact on the Employer’s operations, its clients and employees.

Whatever you believe to be your strongest argument in an arbitration case, don’t assume it automatically eclipses all other elements. An arbitrator will want to be satisfied that all relevant facts have been presented so they can consider the whole story, identify the most pertinent factors, and give each the weight they deem appropriate. The advocate must understand the potential impact of each mitigating and aggravating factor present in the case and how they might impact the Grievant’s standing.

 

© SLS ©