When employee misconduct is wilful, blatant and dangerous, should mitigating factors matter?
By Jeffrey R. Smith
There are some jobs where you just don’t want to see an empty seat — roles that require little supervision, but a high level of responsibility where, if something goes wrong, the consequences can be disastrous.
Jobs like this include those in nuclear plants, industrial environments with dangerous materials and air traffic control.
If an employee in such as position wilfully fails to do what is expected, the result could be not only a breach of trust but also a risk to public safety. One might think an employee in one of these critical positions who abandons his post would be guilty of misconduct warranting dismissal.
But, like most dismissal cases, one should never assume.
A couple of years ago, two flight service specialists for NAV Canada were fired after they abandoned their posts for a half-hour lunch break each. The specialists didn’t dictate aircraft movement like air traffic controllers, but they provided important information on weather, traffic and runway activity that pilots used for landing and takeoffs. Each specialist was responsible for a particular region.
NAV Canada told the two employees and others at their station they were thinking of reducing a floater — a position that backed them up and filled in for them at their desks when they took breaks. Shortly thereafter, the site manager took the employee who usually filled the floater position with him to a meeting, leaving the two specialists with no backup.
Each specialist still took his half-hour lunch break, leaving his desk for that time. They both failed to follow protocol by putting their headsets on speaker so they or the other one could hear if there were any problems while he was gone. Neither asked the other to cover his desk in his absence. During one specialist’s lunch break, two planes were ready to take off and, during the other’s, a plane landed in his region without the information he would have provided.
NAV Canada fired both specialists for poor judgment, breaching its trust and failing to follow policy that created a safety risk to flights in their regions. However, an arbitrator reinstated them with lengthy suspensions.
Even though it was determined their actions were premeditated as a response to NAV Canada’s staff reduction, the fact both employees had several years of exemplary service weighed in their favour. Also, it was determined NAV Canada’s investigation was too rushed to give them a chance to defend themselves before dismissal.
This kind of decision is one of those that can cause employers to wonder just what it takes for there to be just cause for dismissal.
In this case, employees entrusted with an essential job providing important information for pilots taking off and landing planes left their posts vacant to go on lunch. They also ignored safety protocol by not leaving speakers on so they or others might hear if there was an emergency — and the arbitrator agreed it was wilful misconduct. They were lucky something bad didn’t happen. And yet, because it was their first instance of misconduct, they were reinstated.
Even though NAV Canada’s investigation could have been more in-depth, there was no dispute over what the employees did. Sometimes, shouldn’t the misconduct speak for itself?
What’s the threshold where misconduct serves as just cause, regardless of how the employer handles the investigation or the record of the employee? Or should mitigating factors always be considered, no matter how bad the misconduct is?
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at [email protected] or visit www.employmentlawtoday.com for more information.
