WELLAND, Ont. -- Will a transport enforcement officer with the Ontario Ministry of Transportation who pled guilty for masturbating in the bushes outside a girls’ school actually return to his job?
We may never find out, according to Ken Krupat, a lawyer specializing in employment law and wrongful dismissal cases. Krupat isn’t directly involved in the case of Jeffrey Richard, an MTO enforcement officer who, in January 2010, pled guilty to two counts of committing an indecent act but later won his job back after an Ontario Grievances Settlement Board hearing, at which Richard was represented by the Ontario Public Services Employees Union (OPSEU).
Krupat has been watching the case closely, however, as it, as Krupat wrote in a blog on the subject, “illustrates the high level of misconduct that unionized employers must demonstrate in order to uphold the dismissal of an employee.”
Last month, arbitrator Loretta Mikus ordered the MTO to reinstate Richard, who worked at the Vineland inspection station as a transport enforcement officer. This despite the fact he admitted to 10 instances of committing indecent acts along the Welland Canal trail system in the area of a girls’ school, was charged with four counts and pled guilty to two. But the most surprising aspect of the decision, according to Krupat, was that he was given his job back despite a relatively short employment history with the MTO.
“What most people who I’ve spoken to find surprising, is where an arbitrator would usually put someone like that back to work would be where the person had a long history of service,” Krupat said in an interview with Trucknews.com. “This guy was only there for a couple of years; that’s really the most surprising thing about it…And mix that with the guy saying he did this (indecent act) 10 other times and just hadn’t been caught, then it seems really surprising that they would reinstate this guy.”
According to Krupat, the MTO must now decide whether to accept Richard back into his role as a transport enforcement officer, or submit an application for judicial review.
“What happens is when there’s a case involving a union and an employer that is unionized, they have an arbitrator who hears the case, an the arbitrator makes the decision, and unlike a court case where if you don’t like the decision you appeal it to the next level, what you have to do is go and apply for judicial review. That means you have to ask a judge to step in and say this decision was totally unreasonable - not just that the arbitrator may have made some kind of mistake, but that this was unreasonable, and that’s the test for the decision,” Krupat explained. “It’s pretty tough to successfully judicially review these decisions, but it happens sometimes.”
Another option for the MTO would be to apply for judicial review, then to settle with the employee before he returns to the job.
“It may never see the light of day,” Krupat said of a final decision on the matter. “It may get settled at some point between the judicial review application being filed and the case actually being heard. They can file the judicial review application and not have agreed to put this guy back to work and then come to an agreement where the Crown says ‘Let’s pay some amount of money to get out of here,’ and nobody would ever hear about it again and the guy wouldn’t have been put back to work.”
If the case does go to judicial review, it could be months before a judge rules on the case. And if the MTO does elect to fight the decision, Krupat said it’s an uphill battle to get it overturned.
“It’s really hard to predict what a judge might do with this,” Krupat said. “Part of the reason for that is, they do tend to give arbitrators pretty wide discretion in actually hearing the person, weighing all the facts, thinking about the discipline compared to the person’s life and whether they think this person can ultimately still contribute as an employee. I think the biggest things that make this surprising are the guy was only there for a relatively short period of time and he stated this happened at least 10 times. So with those things, it does seem surprising the arbitrator reinstated him. But all that being said, all these judicial reviews are quite an uphill battle.”
One thing’s for certain, if it wasn’t for his membership in the union, Richard wouldn’t be returning to work, Krupat added.
“No employee who was fired for this in a non-unionized context would ever get their job back,” he said. “If they were successful they would get a little bit of money, if they were really successful would get a little more money, but a two-year employee would get very little money.”