Discipline Without Union Representation May Be Void

October 30, 2013

Author: Alex Heaslip

An Ontario labour arbitrator has reinstated an employee of an armoured truck company whose violation of company policy resulted in the loss of a client’s deposit envelope valued at more than $12,000.

On November 11, 2011, the grievor attended a client’s premises in Peterborough, Ontario. The grievor gathered several deposit envelopes and signed the client’s receipt book indicating that he had received them. The employer’s policy required the grievor to document the deposits on the employer’s vault holdover sheet before leaving the customer’s premises.  However, the grievor only did so after he returned to the armoured truck. The grievor had collected 8 envelopes, but only recorded 7 on the holdover sheet.

The employer discovered the discrepancy on December 5, 2011 when notified by the client that it had not been credited with a deposit of over $12,000.

On December 12, 2011, the employer’s branch manager informed the grievor about the missing package and asked him to provide a written statement.  A provision in the collective agreement required the employer to provide union representation should an employee become a suspect in a theft or loss.  However, the grievor was not offered union representation.

On December 19, 2011, the branch manager asked the grievor to meet with the employer’s security director.  The grievor was asked for a step-by-step breakdown of the events of November 11, 2011. Again, the grievor was not offered union representation. On December 21, 2011, the grievor was dismissed on a “with cause” basis.

The union grieved the dismissal and raised a preliminary objection based on the employer’s failure to advise the grievor of his right to union representation.

In allowing the grievance, the arbitrator applied jurisprudence standing for the proposition that an employee’s right to union representation in a meeting that may lead to the imposition of discipline is a substantive right.   The violation of this substantive right resulted in the employer’s disciplinary response being declared void from the outset. 

Employers are reminded to be cognizant of, and adhere to, union representation clauses in their collective agreements.  As evidenced by the arbitrator’s decision in this case, a failure to do so may result in otherwise defensible discipline being overturned.


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