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Even long-term employees with a clean record can be handed a lengthy suspension when it is warranted

suspension-of-workA recent Ontario Grievance Settlement Board case highlights the point that, even where employees are long-term and have a clean service record, they can still be subject to serious discipline if the circumstances are right.

Moreover, in Ontario Public Service Employees Union (Basta) v. Ontario (Government and Consumer Services), the vice-chair concluded that when Daniela Basta received a 20-day suspension following a highly inappropriate call handling at a call centre, the disciplinary response fell within the range of what could be considered reasonable, even though Basta was a long-term employee with 19 years of experience and had a clean disciplinary record.

How could this happen?

Basta worked as a Customer Care Representative in a Service Ontario Call Centre. On June 30, 2014, she spoke inappropriately to a customer calling into the Health Line for assistance in seeking treatment for mental health issues.

Following this call, and for the balance of her shift and several days afterwards, she continued to speak about the incident without remorse with several of her colleagues and did not bring the matter to the attention of management. Basta acknowledged the incident had taken place when approached about it by management on July 18, 2014, however, she did not apologize or express any remorse.

Management thought that her conduct and the way she handled a fragile caller in the absence of provocation by the caller, her lack of remorse and her actions after the call occurred (talking to her co-workers about it and not speaking to management), made it a real possibility there could be a repeat occurrence. There was also a real concern with the impact on the image of Service Ontario as a brand.

Thus, on August 14, 2014, Basta received written notification that, due to an incident of inappropriate call handling on June 30, 2014, she was being suspended from work without pay for 20 days.

It was only at this point that Basta expressed remorse and acknowledged that her behaviour had been inappropriate. Nonetheless, Basta filed a grievance on August 15, 2014. She argued that, although some discipline was appropriate, the lengthy suspension was excessive given her long-term service and clean discipline record.

The union submits that the penalty of losing twenty days pay is too severe and that the suspension can be reduced without the employer’s message being lost on the grievor. The union accordingly asks that the arbitrator amend the quantum of discipline to a lesser amount.

Hearing and decision

At the hearing, even Basta admitted that the conduct was serious, and if it happened again, there would be cause for the termination.

The Board concluded that the amount of discipline fell within the range of what was reasonable in the circumstances. That said, the call centre would have been justified in dismissing Basta from her employment for her conduct in this incident were it not for her long work history and clean work record. The Board stated,

It is these positive latter work attributes that have saved her employment from being a casualty of this incident”

It was significant that Basta did not show remorse for her behaviour. In fact, it was only after disciplinary action was taken by management on August 14th that she expressed remorse for her conduct.

Ultimately, the Board confirmed that arbitrators were not there to fine-tune the discipline imposed by employers. In this case, the 20-day suspension from work could not be found to be excessive. The Board stated:

The quantum of discipline imposed makes clear that the misconduct was serious, yet falls short of termination, thereby recognizing the application of mitigating factors as set out in the disciplinary letter of August 14, 2014”

In reality, the mitigating factors prevented Basta from being terminated.

Therefore, the grievance is dismissed.

What can employers take from this case?

As can be seen from this case, even long-term employees with clean records can experience serious disciplinary responses in certain cases. Typically, a system of progressive discipline is used by employers, but there are some instances where the misconduct is so serious that it is appropriate for an employer to send a strong message by skipping a few steps and going straight to a lengthy suspension. Simply put, there is no one answer when it comes to discipline because it is largely dependent on the circumstances of the case and mitigating factors.

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Christina Catenacci

Christina Catenacci, BA, LLB, LLM, was called to the Ontario Bar in 2002 and has since been a member of the Ontario Bar Association. Christina worked as an editor with First Reference between February 2005 and August 2015, working on publications including The Human Resources Advisor (Ontario, Western and Atlantic editions), HRinfodesk discussing topics in Labour and Employment Law. Christina has decided to pursue a PhD at the University of Western Ontario beginning in the fall of 2015.Read more
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