The Ontario Divisional Court has overturned a controversial arbitration decision. In January 2013, an arbitrator ordered an exhibitionist Transportation Enforcement Officer back to work after he had been criminally convicted of committing indecent acts in public. The grievor had been conditionally discharged of his criminal counts. We wrote about the decision here.
The officer had been arrested for masturbating in public near a girls’ school. He was discharged by his employer for just cause. The case went to arbitration and the arbitrator, Loretta Mikus, somehow concluded that the officer would not be impeded from performing his duties, despite that fact that he had been convicted and conditionally discharged of these counts of public indecency. The grievor had only been with the MTO at the time for approximately two years.
Not surprisingly, the Crown brought an application for judicial review. In a decision released on December 10, 2013 in Ontario (Transportation) v. OPSEU (2013 ONSC 7227), a three judge panel of the Ontario Divisional Court unanimously overturned the arbitrator’s decision.
The Divisional Court disagreed with a number of the key findings of the arbitrator and quashed the decision for several reasons:
1. The arbitrator had incorrectly misstated the likelihood of the grievor re-offending. The Divisional Court cited the evidence of Dr. Dickey (actual name) that the long term prognosis was “at least a moderate risk of re-offence.” The arbitrator had downplayed this risk;
2. The Divisional Court held that the grievor’s conduct would clearly damage the employer’s reputation and the arbitrator had diminished this factor;
3. It was unreasonable for the arbitrator to conclude that the grievor could perform his duties satisfactorily as he would be required to give credible evidence in court. His ability to do this would be significantly compromised.
4. There was evidence that other employees would be reluctant or unwilling to work with the grievor if he was reinstated. The Divisional Court noted that it would be perfectly understandable that female employees would be reluctant to work with this grievor.
5. The arbitrator improperly diminished the seriousness of the criminal charges that the grievor had faced and the conduct for which he had been charged.
6. The arbitrator understated the effect on workplace morale and the knowledge of the other employees of the events in question.
In a scathing attack on the arbitrator’s decision, the Divisional Court had this to say in summary:
“…the Board unreasonably diminished the Millhaven criteria, erroneously interpreted or ignored relevant evidence, and understated the importance of the grievor’s conduct in the context of his work as a TEO. This led the Board to unreasonably conclude that termination was not appropriate.”
Accordingly, the Divisional Court overturned the arbitrator’s decision and upheld the MTO decision to discharge the grievor for just cause.
While it is generally quite difficult to review an arbitrator’s decision successfully in the labour context, this case demonstrates that whacky decisions can be overturned. As the Divisional Court concluded, it would be unreasonable for the Ontario Ministry of Transportation to be expected to continue to employ an inspection officer who might, at any time, hand out something other than tickets and fines.
It would now be up to the union to decide whether to try and have this case appealed to the Ontario Court of Appeal. It seems that the likelihood of success would be quite minimal, given the cogent and detailed reasons of the Divisional Court.