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Can an employer impose inconsistent disciplinary penalties?

August 01, 2019

Inconsistent disciplinary penalties leads to reinstatement of employee terminated for cause

In CUPE Local 5180 v. Trillium Health Partners, the arbitrator held that an employer’s decision to terminate an employee for significant premeditated time theft was inappropriate where it was inconsistent with the employer’s previous disciplinary penalties for similar wrongdoing. The arbitrator reinstated the grievor without pay and, as offered by the union at the hearing, on the condition that she work without pay for one hour each shift until the total time stolen had been accounted for.


After nearly nine years in different bargaining unit positions at the same hospital, the grievor took a position as a Patient Transport Representative (i.e. Porter). From the first day she started working alone, the grievor completed all of her assigned tasks as quickly as possible when she arrived in the morning and then left to assist her mother, who had difficulties disabling the alarm system at the dental office where she worked as a cleaner. The grievor left the hospital sometime after her shift began and returned at the end of her first break.

The grievor left work primarily to help her mother disable the alarm system, but she would sometimes stay to assist her with her cleaning duties. The grievor was not paid for this work.

The employer became concerned about the grievor’s attendance when she was late for two shifts without reporting to the employer in advance. Although the employer met with the grievor several times to discuss the issue, the grievor did not admit to the extent of her absences until the employer obtained the grievor’s parking records and put them to her. At that point it was clear the grievor had engaged in significant time theft totalling nearly 55 hours in the five months the grievor had been a Porter.

At the final meeting prior to her termination, the employer confronted the grievor with her parking records and the grievor confirmed she had left for those hours, expressed remorse, and offered to repay the employer for the time.

The grievor continued to work her regular shifts for two weeks, until the employer made the decision to terminate her employment.

At the arbitration hearing, the union acknowledged the grievor had committed time theft and that the wrongdoing deserved discipline. However, the union argued that termination was an inappropriate penalty for a number of reasons, including the fact that the employer had imposed less severe penalties than termination in previous cases of significant time theft.

The arbitrator’s decision

The arbitrator found that, despite the seriousness of the misconduct, termination was not an appropriate punishment in the grievor’s circumstances.

The arbitrator found the regular factors examined in dishonesty cases cut both ways, with some favouring the grievor’s reinstatement and others favouring upholding the grievor’s termination. The arbitrator concluded that but for one additional factor, he would not have reinstated the grievor as the extent of her premeditated time theft over a number of months outweighed those factors that are otherwise in her favour. However, he found the employer’s penalty in this case could not reasonably be supported because it was not in keeping with how the employer had dealt with prior cases of time theft by employees in the same bargaining unit.

At the arbitration hearing, the parties admitted an agreed statement of facts concerning two instances of time theft on the part of bargaining unit employees. The first case concerned an employee who was issued a three-day suspension for forty seven instances of time theft over a period of seven months totalling eleven hours and forty five minutes. The second case concerned an employee who was issued a ten-day suspension for time theft on thirty eight of his sixty five shifts over a period just greater than four months, totalling ninety one hours, exclusive of thirty six hours of break time.

The arbitrator was concerned about this evidence of inconsistent disciplinary penalties, particularly in respect to the second case raised by the union. That case involved an employee whose seniority and disciplinary history were similar to those of the grievor. That employee was caught engaging in similarly serious time theft a year and a half before the grievor was caught, but the employer imposed only a ten-day suspension. The arbitrator noted that the one and a half years between the second case and the termination of the grievor was a “relatively insignificant period” and that in the absence of any communication to the union and its members that the employer would deal with time theft in a different fashion moving forward, the prior discipline “stands in stark contrast to the discipline imposed on the Grievor.”

The arbitrator found that the significant difference in the penalties imposed could not be supported by the evidence in each case.

Ultimately, the arbitrator concluded that there was simply “too great a disparity between the discipline imposed on Employee #2 and the grievor that cannot be reasonably explained by the evidence”.

The arbitrator re-instated the grievor without compensation for the time she had been terminated and, as offered by the union, on the condition that she would work for one unpaid hour each of her first fifty five scheduled shifts to reimburse the employer for the time she had been absent.


Joshua Mandryk

Practice Areas

Labour Law