Grievor & Company Case Summary

[50] The Employer has asked that if I find dismissal excessive, I should award damages instead of reinstatement and cites TTC in support. The arbitral approach to this issue is reviewed in Brown and Beatty, focus 5. [51] As per Lethbridge, generally, if the Grievor’s collective agreement rights are violated reinstatement is ordered. Damages in lieu of reinstatement are awarded by an arbitrator in exceptional circumstances where the arbitrator finds that the employment relationship is no longer viable. [52] The cases referred to by both parties cite the following factors in DeHavilland as the relevant factors arbitrators consider when making this determination:
1) The Grievor’s demeanour and attitude at the hearing.
2) The Grievor’s
[53] Upon consideration of these factors, as in AUPE, damages instead of reinstatement should not be awarded. I am not convinced of the Employer's assertion that the Grievor's insubordination and post-discharge conduct contains the lack of trust, animosity and risk of poisoned work environment that makes the employment relationship inviable. [54] I disagree with the Employer that Grievor's post-discharge conduct clearly demonstrates her poor attitude, disregard for authority and other's safety. [55] While the Grievor's post-discharge conduct is inappropriate, there is no evidence that her co-workers will not work with her. In TTC the Grievor physically assaulted the same individual not once, but twice. Here, the Grievor did not threaten anyone nor physically harm anyone in any of the three incidents nor in her post-discharge conduct. Her throwing of the beakers in Mr. Gomez's direction was violent; it did not harm him. I appreciate the Employer's desire to maintain a violent free workplace where employees do not constantly fear for their
Like the arbitrator in that case, I should order reinstatement and substitute the discharge with suspension. The Grievor in Dominion used abusive language, made a threat and threw material at a supervisor. In this proceeding, during her post-discharge misconduct the Grievor did not use abusive language, at most her use of "stupid" may be viewed as inappropriate in the workplace. She did not make overt verbal threats to her superiors. She did, however, threw material in the direction of a supervisor. If conduct which occurred immediately proceeding the grievor’s discharge did not result in upholding the discharge, there is insufficient reason to say that the post-discharge conduct which was the Grievor's reaction to the termination does not warrant the same result as