VINELAND, Ont. -- An MTO transportation enforcement officer who plead guilty to committing indecent acts in public, and told his boss he harboured anger issues towards women, will not be returned to his job despite an earlier ruling in his favour by an arbitrator.
A three-judge panel of the Ontario Divisional Court unanimously overturned the arbitrator’s decision, after the initial ruling was sent for judicial review. It’s rare for a judicial review to overturn the ruling of an arbitrator, according to employee law expert Ken Krupat.
Trucknews.com first reported on the case last February. The officer at that time had won a grievance against the MTO, requiring them to give him back his job as an enforcement officer. This after he plead guilty to two charges of committing an indecent act, having been caught masturbating on a trail system near a girls’ school.
He received a conditional discharge and three years’ probation, despite his admission of guilt. However, the decision to allow him to return to work didn’t sit well with Trucknews.com readers or even some of his co-workers.
“(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,” Krupat wrote in a recent blog. “The grievor had only been with the MTO at the time for approximately two years.”
Krupat said at the time that the arbitrator’s ruling “illustrates the high level of misconduct that unionized employers must demonstrate in order to uphold the dismissal of an employee.”
In its decision to overrule the arbitrator, the Divisional Court panel declared: there was “at least a moderate risk of re-offence”; that the grievor’s conduct would damage the employer’s reputation; that it would be unreasonable to expect the grievor to be able to give credible evidence in court; that there was evidence other employees would be unwilling or reluctant to work with the grievor; that the arbitrator diminished the seriousness of the charges the grievor faced; and that the arbitrator understated the effect on workplace morale that reinstating him would have.
The panel also rebuked the arbitrator, saying “The (Ontario Grievances Settlement) 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.”
Krupat said there’s still a chance the grievor could appeal the decision, but it’s unlikely he’d succeed.
“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,” Krupat wrote. “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.” You can read the court ruling here.