The arbitrator in Corporation of the City of Cornwall v Amalgamated Transit Union, Local 946 [Cornwall] upheld the just cause dismissal of an employee involved in a violent incident, despite flaws in the investigation. As the employee’s violence and dishonesty amounted to cause, the procedural defects in the investigation had little to no effect on the outcome.

BACKGROUND

The employee, a bus operator, was involved in a physical altercation with a pedestrian while on duty. The pedestrian asked the employee for a lighter, allegedly grabbing and twisting the employee’s wrist/hand. In response, the employee head-butted and pushed the pedestrian up against the bus. The employee claimed that the pedestrian initiated the confrontation and that he acted in self-defence. He later reported the incident to his supervisor, as required by the employer’s policy.

Although the incident was recorded, the video footage was unclear, prompting the employer to investigate further. The investigation concluded that the employee was the aggressor, engaged in violent conduct, and was dishonest both when reporting the incident and during the subsequent investigation. Based on the investigator’s findings, the employer dismissed the employee for cause.

The union grieved the dismissal and sought reinstatement and $30,000 in damages for alleged violations of the Occupational Health and Safety Act [OHSA] and for discriminatory and bad faith conduct.

DECISION

Given the conflicting accounts of the physical altercation, the arbitrator made detailed factual findings based on the evidence, including the video recording. The arbitrator found that the employee:

• was the aggressor;
• used a loud, angry, and aggressive voice;
• headbutted the pedestrian;
• pushed the pedestrian into the side of the bus in a violent manner (not merely, as the employee claimed, to move the pedestrian outside of his personal space); and
• did not check on the pedestrian’s wellbeing after the altercation.

The arbitrator also found that the employee was deliberately dishonest when reporting the incident to his supervisor and during the investigation, in an effort to avoid the consequences of his misconduct.

Based on the factual findings, the arbitrator held that the employee’s conduct warranted significant discipline, noting that “it would be unthinkable” to reinstate an employee who committed a “violent assault [and] consistently lie[d].” The arbitrator also found that the following factors did not mitigate the employee’s dismissal for cause:

• The flaws in the internal investigation were not determinative because the employee could challenge the decision through the grievance process.
• The employer’s alleged OHSA violations were unsubstantiated. The union argued the employer failed to train employees on the risk of being harassed/assaulted by passengers. The arbitrator disagreed that there was any OHSA violation by the employer, noting that the employee was the assailant and that the other individual involved was a pedestrian, not a passenger.
• The dismissal was not discriminatory, as other employees who received less severe discipline had distinguishable circumstances—no other employee assaulted a pedestrian or lied about it.
• The absence of union representation during one meeting with the employee did not breach the collective agreement or undermine the just cause dismissal.

The arbitrator dismissed the grievance, did not reinstate the employee, and upheld his dismissal for cause.

TAKEAWAYS

While just cause remains a high bar, Cornwall demonstrates that an employee’s violence and dishonesty can meet that threshold, despite procedural flaws in an investigation. Cornwall highlights several important lessons for employers:

1. Implement policies and conduct training: In Cornwall, the employee was not trained to de-escalate violent encounters with the public. For organizations with public-facing staff, policies and training can proactively reduce the risk of misconduct or safety risks, and if needed, support an employer’s discipline when workplace standards are not met.
2. Just cause is a high bar: It can be difficult to establish that a dismissal for cause is appropriate. However, just cause terminations can be justified in certain circumstances, including when an investigation finds that an employee was violent and dishonest. While consistency in discipline is important, employers must also consider the specific circumstances of each case, including the nature and seriousness of the misconduct.
3. Follow procedural requirements under the collective agreement: Even though the lack of union representation at one meeting did not negate the employee’s misconduct in Cornwall, employers should comply with all procedural requirements under their collective agreements. Following this best practice reinforces the fairness of the process and makes disciplinary decisions less vulnerable to challenge.

This blog is provided as an information service and summary of workplace legal issues.

This information is not intended as legal advice.