Municipal Supervisor Using City Washing Facilities to Wash His Own Truck Not Just Cause :
In Stevens v. Port Coquitlam (City), 2022 BCSC 2090 Justice Elwood had a situation where a supervisory employee of 7 years ( most of which was in the union) was terminated because he used a municipal facility to wash his own truck, contrary to city policies.
He did not deny this use and acknowledged that he was wrong.
The major issue was whether or not this incident was sufficient cause so that discharge was an appropriate remedy. This is what the Judge said :
[87] However, I find that the City had other sanctions available that could have achieved its legitimate objectives. The City could have suspended Mr. Stevens without pay. It could have required him to attend remedial training. The City also could have convened an employee meeting and used this incident to emphasize the importance of the policy on the use of municipal equipment, even in less serious cases than the copper thefts. It could have required Mr. Stevens to lead the meeting.
[88] The 2020 Incident reflected poorly on Mr. Stevens’ management skills. However, I am not persuaded the employment relationship was damaged beyond repair. Mr. Stevens was relatively new to management. He needed coaching in the leadership aspects of his position. There is no evidence that he was uncoachable in this regard. Even with a second breach of policy, I am not persuaded his behaviour could not be corrected with a clear warning and appropriate discipline.
[89] In short, I find that summary dismissal was not a proportionate response to the misconduct. A reasonable employer informed of the relevant circumstances would not conclude that the employment relationship was damaged beyond repair.
My Comment:
In my mediations I sometimes find that Plaintiff’s counsel try to defend the indefensible when it comes to their clients’ obvious misconduct. They try to deny clear facts or shift blame to others. This feeds into the employers’ view ( and the Courts’ view) that the employee is beyond rehabilitation if he will not even admit his actions were wrong.
This case shows that it is smarter to simply argue that the punishment does not fit the crime. Taking a company pencil home is not the same as stealing a company truck. There is little reason that an employer cannot issue a short disciplinary suspension for misconduct. Denying or reducing a discretionary bonus may also be a a lesser penalty for misconduct.
Judges and arbitrators seem to love expressions of true remorse made before the dismissal .
He did not deny this use and acknowledged that he was wrong.
The major issue was whether or not this incident was sufficient cause so that discharge was an appropriate remedy. This is what the Judge said :
[87] However, I find that the City had other sanctions available that could have achieved its legitimate objectives. The City could have suspended Mr. Stevens without pay. It could have required him to attend remedial training. The City also could have convened an employee meeting and used this incident to emphasize the importance of the policy on the use of municipal equipment, even in less serious cases than the copper thefts. It could have required Mr. Stevens to lead the meeting.
[88] The 2020 Incident reflected poorly on Mr. Stevens’ management skills. However, I am not persuaded the employment relationship was damaged beyond repair. Mr. Stevens was relatively new to management. He needed coaching in the leadership aspects of his position. There is no evidence that he was uncoachable in this regard. Even with a second breach of policy, I am not persuaded his behaviour could not be corrected with a clear warning and
appropriate discipline.
[89] In short, I find that summary dismissal was not a proportionate response to the misconduct. A reasonable employer informed of the relevant circumstances would not conclude that the employment relationship was damaged beyond repair.
My Comment:
In my mediations I sometimes find that Plaintiff’s counsel try to defend the indefensible when it comes to their clients’ obvious misconduct. They try to deny clear facts or shift blame to others. This feeds into the employers’ view ( and the Courts’ view) that the employee is beyond rehabilitation if he will not even admit his actions were wrong.
This case shows that it is smarter to simply argue that the punishment does not fit the crime. Taking a company pencil home is not the same as stealing a company truck. There is little reason that an employer cannot issue a short disciplinary suspension for misconduct. Denying or reducing a discretionary bonus may also be a a lesser penalty for misconduct.
Judges and arbitrators seem to love expressions of true remorse made before the dismissal .
If you would like a copy of this case, email me at barry@barryfisher.ca
For my mediation date availability go to www.barryfisher.ca