Emma Williams’s Case
Arbitration is a formal process for determining a grievance between parties in a conflict. A labor arbitration process involves an employment-related dispute between an employer and employee. The authority of an arbitral award comes from the binding arbitral clause in a contract of employment or the authority given by the parties through the appointment (Walras, 2013). An arbitrator has quasi-judicial powers to investigate, listen to the grievances of the parties and provide a decision, which is binding on all parties involved in dispute. However, arbitration must be launched on time to have a force of law. The dispute in Emma Williams case is an arbitral labor relations dispute since the matters raised falls within the cause of employment.
The aggrieved was a long time employee in cancer unit within the University General Hospital. She had worked in the hospital for 46 years, and the better part of the duration of employment kept higher rates of performance, beyond expectation and achieved all targets. She complied with all documentations required for the job. Her exemplary performance began to decline in the year 2013 after the tragic accident that led to the death of her 16years old son. Among other area affected includes workplace attendance. During the year 2013, her absenteeism rate rose to 19 percent, apparently the highest registered in the company. That year alone, she received two written and one verbal warning. All the warnings were issued in my presence. As a result, it led to the termination of her employment within the same year. During the time, she was under treatment of painkiller drugs, oxycodone, available within her unit and alcohol addiction. She has had a private addiction counselor, Dr. Anderson, who has been helping her to revert to previous self. In year 2013 and 2014, consistency to counseling sessions was a strained one. After one year of treatment, the counseling sessions had begun to yield, and the doctor believed she could resume her work. She has a clean record of conduct, and no evidence is available to link her with any form of delinquency in the workplace, including stealing of drugs, which falls within her access.
Facts for the Grievant
Several facts go in favor of the accused. First, the aggrieved has been a resourceful employee for the hospital since her employment in 1996. Her ratings during the term of employment are evidence to that fact and such ratings come with competency and exemplary performance. Her ratings began to change in 2013 a year in which she received her first warnings and eventual dismissal. As such, she cannot be described as a liability to the company during the time and she kept a clean record of the attendance in the past. The issue of attendance rose and sealed her fate in 2013 after long periods of clean service and she had a clean record of conduct. As such, this is notwithstanding the matters so alleged by her employer. By not stealing drugs, she needed to cope with her headaches she demonstrates a level of honesty. Lastly, she has some mitigating factors, although not known to her employers. These include, among other things, the evidence of her psychological problem for the loss of her child on tragic accident, evidence of ongoing counseling sessions and the connection between the two. The hospital’s EAP department and Ms. Chang are privy to these facts.
Defeating Fact
Regardless of the mitigating facts attached to the case, she is in wrong for absenteeism, and these issues contradict the terms of employment. The fact of absenteeism is not a contended issue in this case. The practice within the hospital is an automatic dismissal after two counts of warnings. As a union representative, I concede that these warnings were issued in my presence and each time the aggrieved made no effort to defend herself. Measures such as the one taken against the complainant, aims at disciplining for the infraction of institutional laws, and serves as a warning to potential culprits and increases working relations.
Justification for the Nobility of Employee’s Duty
The arbitral process recognizes that as an organization, the hospital is governed by certain regulations that form part of the employment contract. The terms bind all the employees and one impliedly or expressly agree to them depending on the position one takes. A high-ranking personnel such as the aggrieved, agrees to them by appending a signature to the contract of employment beforehand (Walras, 2013). As such, an employee becomes aware of these rules right from the time of employment. These rules form the basis of rules of engagement and conduct within the hospital. A medical institution such as the one in question deal with the lives of people and some level of impunity could have far reaching repercussions. The strictness of the governing rules observed here is intended to emphasize on the nobility of the employee's duty. Absenteeism of key employees maims the operation of a whole department. As a relatively small hospital, reliability is essential for the hospital to prove its worthiness to its customers. The aggrieved is indisputably an important employee in the operation of the hospital. The strictness of these is indisputably commensurate to the nobility of the role of the hospital to the community it serves. They help to improve efficiency and working relations.
Issues in the Arbitration Forum
The fact that employees are essential components in the operation of the hospital does not qualify it to deal with the employees’ infraction in a manner that only addresses its interests. A blanket approach to all arising issues occasions injustices not only in this case, but also in other fields. Every case should be treated equally paying attention to independent variable peculiar to it. In light of the facts of the case in this situation, the termination begs the question whether it was based on just cause. To answer that question, the arbitral process should have to address other low-level questions that in sum directly to the main one. First, it would have to assess the effect of the role of the aggrieved conditions during the year of dismissal. Secondly, whether the dismissal could have been said to be commensurate to the malpractice alleged. Considering a termination is ultimate, it would have to find out whether other options could have sufficed and whether these warnings were sufficient. Lastly, it would have to find out the actual mischief the hospital sought to punish. A termination as this one constitutes an infraction of the rights of the aggrieved. A thorough scrutiny of the validity of the action would only be possible with a focused assessment of all the elements of a just cause.
Notice
As a rule, for a cause of termination to be said to be reasonable and just, notice tendered to the employee has to be sufficient (Harcourt, Lam, & Hannay, 2013). This requirement is based on the philosophy ‘to be forewarned is to be forearmed.’ It has to be clear and certain enough to constitute a warning to the recipient of the impending repercussion. It could be either verbal or literal. An inevitable question in this case, is whether a three-time warning could be said to be sufficient for taking to this path. Labor laws require that a measure taken by the employers to be progressively disciplining and not punitive. In the circumstances, a three times notice and termination have punitive overtones and indicate bad faith. An employer has to provide enough time for the employee to correct her conduct. It is difficult to declare with certainty what amount of notice suffices for each case. Often, it matters not that the absenteeism is innocent or deliberate. On the face of it, the notice must seem to have reached a threshold before taking action.
In the case of Telecommunication Workers Union v Telus 2011, the court of appeal upheld an arbitral decision confirming termination of employment (Strong, 2012). In this case, the aggrieved absenteeism was due to a condition that had increased depression and anxiety making it impossible to keep to the strict attendance requirements. At the time of dismissal, the employer had tolerated some significant level of absenteeism within a period of 15 years during which he had sent more than seven formal letters and held over twenty discussions to discuss the issue.
The union’s defense on the ground of insufficiency of notice was rejected, and the court found that the employer had done enough to warn and offered her time correct the situation. From this case, to qualify notice, one need to look at it quantitatively and the time it gives the employee to correct their actions. In light of the circumstances of this case, it is apparent Williams was only suffering from a transient problem, but the warnings were too short to have given her a chance to recover from her troubling condition. These warnings were issued in quick succession and within a very short time. As such, further considerations should be made by the employer considering that the changed of the aggrieved that led to her termination was sudden and was a result of circumstances that she was facing. In this light, it is essential to acknowledge that the aggrieved has adopted significant efforts towards recovery and resuming her work might help in the recovery process.
Proof and Reasonableness of the Penalty
In an accusation like this one, the dismissal should have to be backed by substantial proof of the commission of the offense. The evidence tendered should able to direct us to the conviction of the guilty. In any case, a just cause should have to be supported by evidence and facts. The onus is on the employer to prove the termination was founded on a just cause. In a case of dismissal such as in this case, the threshold should have to be especially high that is beyond reasonable doubt, substantive and one directing the arbitration towards gross misconduct (Harcourt, Lam, & Hannay, 2013). As an established practice, employers should manifest some level of tolerance and accommodation until that time when it would proof economically unsuitable to retain an employee any further. In the case of Telecommunications Workers Union v. TELUS, 2011 BCSC 1761, the court found out that the seven letters of warnings and a series of discussions on the behavior of the employee constituted substantive evidence to direct one to excessive absenteeism of the aggrieved. The facts and circumstances in this case a far way different from Telecommunications Workers Union v. TELUS, 2011 BCSC 1761 and further consideration should be made.
Further, evidence tendered showed that the employee was unable to keep a regular record of absenteeism at the time of dismissal. In both the arbitral forum and the appeal, the evidence tendered showed that the alleged absenteeism was significant. Termination of the contract of employment is perhaps the highest penalty and should be a last resort in applying in limited circumstances. First, it is when the available evidence points to gross misconduct on the part of the employee. Secondly, if the employee has had enough time to make up for the mistakes but fails to do so. Thirdly, where it is continued clear retention would never be beneficial to the business. Lastly, the decision to dismiss must be reasonably related to the offense in question. In this case, these grounds are sufficiently proved because the aggrieved had a clean record of performance.
The test of reasonableness requires one to receive a lesser penalty for a similar offense if the record is better than that of another. In the circumstances, it would not be possible to consider the employers’ decision as reasonable and fair. Before the year of termination, the employee kept the best record among the employees. Before termination, another employee did not receive even a single warning, even with an absenteeism rate of 15 percent, which is way beyond company’s average. Considering that the employee had been a viable employee and binding to all the company’s regulations, she should have received a lighter penalty for progressive discipline and not purely punitive. The best action would have a temporal relegation of her duties, where she could have been given time to deal with various personal issues she was facing. Permanent dismissal, especially for an employee who dedicated all her efforts in an organization for a long period is punitive measure that is worth re-considering.
An employer should never be too quick to dismiss, especially in the paucity of evidence incapable of directing an arbitral seating to gross misconduct. The situation is much analogous to that decided in the case of Mississauga Toyota and C.A.W. Canada Local 252 (Gast) (Re). Here, the employer had terminated the contract of employment on the allegation of seriously inadequate mechanical inspection. The arbitrator refused to confirm the employer’s decision on the ground of seniority of the employee and the lack of disciplinary record on the file. To the contrary, the arbitrator substituted termination with a one-month termination and reinstatement without pay for the time lost. Of much importance, is the fact that the employee was clearly in the wrong, but termination was obviously unreasonable. While noting that certain conduct calls for disciplinary measures, the penalty should be commensurate with the offense.
Investigation and Equal Treatment
The employer should have to find out whether the employee violated certain governing rules and this fact is not in contention. That notwithstanding, the employer should sustain a fair and objective investigation to avoid giving double standards. The governing rules and penalties for violation should apply evenly. In light of the case in question, it would not be possible to allege that the employers’ findings observed these requirements. Considering another of the employee received not even a warning for having committed a similar offense, it is only possible to smell bias and ill-will from the conduct of the employer. In the circumstances, it is difficult to agree that the penalty was awarded for efficient operations of the hospital. An objective investigation would have found out the underlying condition of the aggrieved that induced her sudden change of conduct. Only then, the employer would have been able to accommodate her misgivings. In a practical business set up, an employer should contrive to be accommodating enough until doing so proves futile and unworthy (Smutny, Abby, and Epaminontas, 2015).
Being accommodating is a virtue that an employer has to observe. In the case of St. Mary's General Hospital and O.N.A. (Harris) (Re), the aggrieved was a nurse who lived under an addiction to narcotics that compelled her to steal some selected hospital drugs. The arbitrator discovered that the grievant had committed an offense warranting punishment. In the words of the arbitrator, however, the employer should have understood the condition of the employer and learn to be more accommodating. The seating refused to uphold her termination. In normal circumstances, where an employer is not sure about the small details occasioning the employees, sudden change of conduct, the first move should be a suspension as one awaits further investigation. It looks fishy to proceed to dismiss an employee in the paucity of information. Like the latter cases, it is apparent that the arbitral seating holds some mitigating facts such as an addiction of the employee, persuasive and more often than not, the finding goes in favor of the aggrieved.
Relevant Jurisprudence
Through practice, certain decisions have emerged as a matter of jurisprudence in labor arbitration cases. Firstly, arbitration should be filed within a reasonable time. Reasonableness is a contextual question. Where the aggrieved takes an unreasonable time to file the arbitration, the employer could ask for a waiver or estoppel to bar any claim. The position was affirmed in the case of SEIU Local 113 and Aspen Medical Group. Secondly, in employment a contract, an arbitrator is bound to decide the case paying much regard to the concept of progressive discipline unless the evidence available directs to gross malfeasance with the inevitable been dismissal. To achieve this object, the arbitrators have to assess whether the penalty given by the employer is commensurate with the offense alleged. Often, termination of employment requires substantive evidence capable of making the offense more significant. This position was affirmed in the case of the Telecommunications Workers Union v. TELUS, 2011 BCSC 1761. Here, the employer supplied substantive evidence pointing to a significant rate of absenteeism.
Termination on flimsy mistakes should never stand. In the case of Mississauga Toyota and C.A.W. Canada Local 252 (Gast) (Re), although acknowledging that that the employee had committed a punishable offense, the arbitrator noted that the penalty was unreasonably harsh and substituted it for a month’s suspension. Being accommodating as an employer is a practice that the employers should have to cultivate (Smutny, Abby, and Epaminontas, 2015). In a practical scenario, the employers could use termination as a way of settling interpersonal scores or even ditch employees for conditions they dislike, like sudden ailments. The case of St. Mary's General Hospital and O.N.A. (Harris) (Re) demonstrates the role of an arbitrator seating in defending the rights of the employees. As an established practice, termination should be preceded by reasonable notice. Reasonable notice may include, among other things, termination pay, discussions with the employee on the offense, and sufficient remedial time. In the recent development, courts have recognized the jurisdiction of an arbitral process even in areas where a dispute includes an infraction of right arising from statutes. This decision was reached in the case of Desputeaux v Editions Chouette (Horton, n.d). An arbitral seating has the right to determine its jurisdiction in the first instance before conducting its business. In the contemporary world, people are using arbitration clauses to defuse potential legal suits.
Concluding Remarks
Just like an employer, an employee has interests worth protection in a due process. An arbitration process provides a perfect forum for establishing the validity of employers’ actions. Often, employers impose unreasonable terms of employment. The focus should not be lost on the fact that in a contractual agreement for employment, the employers enjoy higher bargaining power and the regulations adopted may not be a reflection of what is a fair conduct within a working environment. The question under discussion manifests the possibilities that emerge due to an imbalanced power play between an employer and employee. The inevitable situation is that it gives the employer the authority to deal with the employees as they please. Even when in the wrong, the penalty expended on the employee should be progressive in disciplining and not purely punitive. As an acceptable social practice, employers have to be accommodating and fair in the manner they deal with their employers. Seating as this one has the power to mitigate the effect of power imbalances between Williams and her employer and make a determination whether the termination was executed on a just cause.
References
Harcourt, M., Lam, H., & Hannay, M. (2013). Employment at Will versus Just Cause
Dismissal: Applying the Due Process Model of Procedural Justice. Labor Law Journal, 64(2), 67.
Smutny, Abby Cohen, and Epaminontas E. Triantafilou, eds. Practising Virtue:
Inside International Arbitration. Oxford University Press, 2015.
Horton, William G. "Current Developments." London; Oxford University Press
Strong, S. I. (2012). Resolving Mass Legal Disputes Through Class Arbitration: The
United States and Canada Compared. North Carolina Journal of International Law
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Walras, L. (2013). Elements of pure economics. London; Rutledge.
