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Unreasonable to dismiss a person for the actions of another

Eileen Morin: Fired from her janitor job

Richard Klassen

A month ago, Richard Klassen was visited by Euclid Morin regarding his wife's having been fired from her job as janitor at Big River First Nation school because he had visited her at the school to get money to pay the power bill so their service would not be cut off.

There was a verbal confrontation between Euclid and the principal which lasted about a minute. Euclid left. Unbeknownst to him, his wife, Eileen, had left the school earlier in the day to pay the bill and had been verbally reprimanded as a result. After Euclid's visit, the Chief and Council for Big River First Nation fired Eileen.

When Richard Klassen heard Euclid's story, he told him he would help because it was an unreasonable policy to dismiss a person for the actions of another.

Klassen took this to adjudication in Prince Albert June 12, 2006. Today, June 29, 2006 we learned that Eileen Morin will be reinstated and compensated for all lost wages from the time she was fired to the present! The arbitrator agreed that the policy the band had used was unreasonable and they will have to amend their policy.


Woman deserves job back, policy 'unreasonable': adjudicator

A federal adjudicator has ruled a woman fired from a northern Saskatchewan school after her husband swore at the principal should get her job back.

In October 2005, Eileen Morin was fired after 11 years as a janitor at Mistahi Sipiy elementary school on the Big River First Nation after her husband, Euclid Morin, called the principal a derogatory name in front of students.

A school board policy says employees are responsible for their guests' conduct. Even though Morin wasn't present during her husband's outburst, the principal later handed her a written reprimand. A week later, the band council terminated her.

"I felt I was really violated," Morin said Friday. "It's just like I was attending a funeral. . . . Everything died that I had worked for."

Morin filed a complaint with Human Resources and Skills Development Canada saying she was unjustly dismissed from her job. Richard Klassen, once the victim of a malicious prosecution in which he was accused, then later absolved, represented Morin before the adjudicator.

After hearing the case, adjudicator Walter Matkowski said the school board's policy of workers being responsible for the behaviour of their guests is "unreasonable."

"It is accepted that an employer may dismiss an employee for wilfully breaching known and reasonable workplace rules or policies," Matkowski wrote. "What rule then did Mrs. Morin wilfully breach?"

Matkowski also accepted Klassen's argument an employee shouldn't be liable for the actions of visitors, because a visitor could include an estranged spouse or enemy taking vindictive actions. Matkowski ordered the school to reinstate Morin and pay her compensation for lost wages.

Morin said her family has taken a financial hit. She was the breadwinner who fed her grandchildren, and the family has had to stretch her husband's salary to cover their expenses and legal fees, she said.

Euclid Morin, who works as a bus driver for the school, was agitated because the family had received a letter saying their power would be cut off if they didn't pay their bill that day, Morin said. When her husband called the school, the principal would not call Morin to the phone, but insisted on taking a message, according to Matkowski's written decision. Euclid Morin then came to the school and confronted the principal, using obscenities.

When asked if the band was planning to change the school policy requiring employees to be responsible for the conduct of their guests, education co-ordinator Wayne Lachance said the band is consulting with its lawyer, Ron Cherkewich. Cherkewich wasn't available for comment, and no one at the band office would speak about the case.

Klassen said despite the adjudicator's ruling, the band hasn't handed over a dime, nor has Morin returned to work. He said the parties are going back before Matkowski Thursday to resolve outstanding issues.


IN THE MATTER OF AN ADJUDICATION
UNDER DIVISION XIV - PART III
of the Canada Labour Code, Alleged Unjust Dismissal

Applicant:           Mrs. Eileen Morin

Respondent:       BigRiver First Nation


Before:  Walter J. Matkowski, Adjudicator
Human Resources and Skills Development Canada
File Number:  YM2707-7054

For the Applicant:        Richard Klassen
For the Respondent:    Ron Cherkewich

Introduction:

Mrs. Eileen Morin, (hereinafter called the "Applicant") filed a complaint with Human Resources and Skills Development Canada (HRSDC) - Labour Program, pursuant to Section 240 of the Canada Labour Code, Part III, dated October 14, 2005, alleging that she was unjustly dismissed from her employment with Big River First Nation on October 7, 2005.

By letter dated February 21, 2006, Mr. Walter J. Matkowski was appointed by the Minister of Labour to adjudicate the applicant's complaint. The application was heard in Prince Albert, Saskatchewan, on June 12, 2006.

Facts:

Daniel Jean, the principal for Mistahi Sipiy Elementary School, the school run by Big River First Nation (hereinafter called the "Employer") where the applicant had been employed and Wayne Lachance, the Employer's Education Co-ordinator testified on behalf of the Employer. The Applicant testified on her own behalf. There was no real disagreement as to the fundamental facts of this case.

The Applicant commenced employment with the Employer in 1994 as a janitor. One of the documents entered by agreement of the parties was a "school janitor contract" dated June 27, 1995, executed by both the Employer and the Applicant. The Applicant continued with her employment until the termination of her employment by the Employer on October 7, 2005. Prior to her dismissal, the Applicant had performed her duties in a satisfactory manner on the vast majority of occasions and had assumed extra responsibilities.

The Applicant's employee file referenced an oral reprimand arising from an incident on November 23, 2004. On that date the Applicant had completed a poor cleaning job in two washrooms at the school. The Applicant also received an oral reprimand on April 5, 2005, as a result of her contacting the Assistant Band Administrator and a Councilor directly, in contravention of Policy #2122.

On September 28, 2005, the Applicant left her place of employment to conduct personal business for at least a period of one hour. The Applicant did not receive permission to leave the school from Mr. Jean, the principal as she was required to do because Mr. Jean was in a meeting. The Applicant advised the school secretary that she would be leaving.

The reason why the Applicant left her place of employment, without the principal's authorization, was because she had received a final notice from SaskPower that if she did not pay her SaskPower bill on that day, her power would be disconnected. Both the Applicant and her husband were aware that the power bill had to be paid by September 28, and the Applicant provided that her husband was working that day so she was going to pay the power bill. The Applicant did in fact drive to the town of Debden, approximately 15-20 minutes away, and paid the power bill before returning to her place of employment. The Applicant received a written reprimand dated September 28, 2005 for leaving her place of employment without authorization. Mr. Jean testified that he utilized a written reprimand because the Applicant had received two oral reprimands within the last 12 months.

The matter might have ended there but for the actions of the Applicant's spouse, Euclid Morin. Mr. Morin attempted to contact the Applicant by telephone that day. The phone rang through to Mr. Jean, who answered the phone, and attempted to take a message for the Applicant. Mr. Morin wanted to talk to the Applicant and ultimately decided to attend at the school.

While Mr. Morin did not testify, the Applicant testified that Mr. Morin was not aware that she had paid the SaskPower bill and that he appeared agitated, supposedly because of the power bill situation.

Mr. Morin saw the Applicant sitting in the office and confronted the principal, yelling at him and using inappropriate terminology such as, "you're an asshole" because Mr. Jean had not let him talk to the Applicant. There was some disagreement over whether or not any children were present when Mr. Morin confronted Mr. Jean, but it is accepted that some children had to be present during the altercation because Mr. Jean testified that he received complaints from two sets of parents and received a call from the Band Office inquiring what had occurred.

The confrontation between Mr. Morin and Mr. Jean lasted for only minutes, and ended abruptly with Mr. Morin leaving the school. The Applicant's written reprimand, dated September 28, 2005, provided as follows:

"September 28, 2005

Re: Eileen Morin, written reprimand

On Wednesday, September 28, 2005 your husband came into Mistahi Sipiy Elementary School and was verbally abusive to the principal in the presence of students and community members. As an employee of the school you are responsible for the actions of all your visitors. Your husband is not allowed on school property. If he is found to be on school property the R.C.M.P. will be notified immediately and you will be suspended immediately.

Further disciplinary action may be taken pursuant to an E.A.B. meeting to discuss this action.

(signature)
Mr. Daniel Jean
Principal Mistahi Sipiy Elementary School

cc:
Derek Klein Big River First Nation Band Administrator
Wayne Lachance Education Coordinator
Big River First Nation Education Advisory Board
Eileen Morin personnel file

Reprimand #1 - Nov. 23/04
Reprimand #2 - April 5/05
Reprimand #3 - Sept. 28/05"

Mr. Jean testified that it is his interpretation of the Employer's Policy that staff members are responsible for their guest's behavior when the guests are present at the school.

Mr. Jean testified that it was not his decision nor his responsibility to impose any further discipline on the Applicant and that he was surprised that the Applicant's employment was terminated. Mr. Jean testified that he provided the Education Advisory Board with a report in regard to incidents dealing with Mr. Euclid Morin, which read as follows:

October 5, 2005

Re: Eileen Morin - written reprimand - follow-up report

Sept. 28/05
1:50 p.m. Euclid telephoned and wanted to talk to Eileen. I told him I would gladly take a message, the same process we have for all staff, and give Eileen the message. He became very rude; started swearing at me and said he was coming right over then hung-up.

1:55 p.m. I was in the outer office and Euclid Morin started swearing at me because I would not allow him to talk to his wife while she was working. I told him not to talk that way, as this is an elementary school. I repeated this several times but he continued swearing at me and accusing me of being a "power hungry asshole". He finally turned around and walked out. During the entire time Euclid was swearing there was a group of grade 3 students walking past on their way back from Cree class and there were several parents and bus drivers sitting in the front area, some of whom asked later "What was that all about?" I feel it is my responsibility to provide the safest atmosphere for the students; Euclid's actions at that time took away that safety from the students. Therefore I have reprimanded Eileen because the staff member is responsible for the behavior of their visitors to the school.

Sept.30/05
9:10 a.m. I met with Eileen Morin and discussed the incident of Wednesday afternoon and presented her with a written reprimand. When I called her to my office I immediately told her about the reprimand and gave her the opportunity to have a witness present; she declined.

12:10 p.m. Euclid telephoned me and was very upset about the reprimand. He told me he was getting a petition together to get me fired. He would also go to the next Band meeting to get me fired. He kept saying "this is not over I am going to get you fired for this". He told me he had talked to some Councillors. During this entire conversation he was swearing at me. I tried to tell him that I took the action I did because this is a community school and I felt he had threatened the safety of the children. He would not listen to anything I had to say.

Oct. 4/05
11:40 a.m. AB and CD came to my office. They said they were here to speak for Euclid and Eileen Morin. I explained to them that out of respect for Eileen's privacy, and all staff members' privacy, I would not discuss staff issues with them. They went on to say that people are coming to them because "nobody trusts the Chief, Council and EAB". I did explain to them our procedure for receiving telephone calls and assured them that the same process was followed for all staff members. I also explained that my first objective is to provide the safest environment possible for all our students to enable them to feel good here and to learn. CD went on to say it was not right that the "white guys" make all the rules. I tried to explain to them that the Policy Manual is a collaboration of education staff, E.A.B. members and Chief and Council working together to provide the best possible services for the children. AB then talked about the Creator wanting things done the "Indian way". They wanted to see where it was written that staff could not receive telephone calls. I tried to explain that it is not written but that it is my responsibility to provide uninterrupted education to the children and I feel it works better to take a message then to interrupt the classes everytime someone calls.

Daniel Jean-Principal Mistahi Sipiy Elementary School
(signature)

Mr. Jean also testified that he reported the September 28th confrontation with Mr. Morin to the police and that no police action was taken. When contacted by the Education Advisory Board, Mr. Jean advised them that he felt threatened by Mr. Morin's actions on September 28, 2005.

Wayne Lachance, the Employer's Education Co-ordinator testified on behalf of the Employer and much like Mr. Jean, he stated that he had no role in the dismissal of the Applicant. His role was to take minutes of the Education Advisory Board meeting and provide information to the Education Advisory Board. He testified that the Education Advisory Board considered either suspending the Applicant or terminating her employment. The Applicant received a letter dated October 7, 2005, sent by the Band Administrator on behalf of the Chief, as is the custom and practice of the Board, which provided:

October 7, 2005
To: Mrs. Eileen Morin, Janitor, Mistashi Sipiy Elementary School

From: Mr. Derek R. Klein, Band Administrator Big River First Nation

Mrs. Eileen Morin

Please be advised that, in a recommendation by the Education Advisory Board and fully endorsed by the Chief and Council, your employment will be terminated as of October 7, 2005. Due to non-compliance to a number of policy regulations, including 7104.16.8, 7104.16.11, 7222.3.4 and 7222.5.

Please be advised that you and only you will hand in your keys to me or to my office by 4:00 p.m., October 7, 2005. Non-compliance to this will mean legal action will take place and the R.C.M.P. will be contacted.

You will receive 2(two) weeks pay in lieu, and your Record of Employment (ROE) will be mailed to you.

Sincerely,
(Signature)
Derek R. Klein
Band Administrator

cc
Chief and Council Big River First Nation
Education Advisory Board Big River First Nation

The Applicant testified that she was surprised that she was fired for her husband's actions, especially given her length of service with the Employer and her good work performance record. She testified that other staff members relied on her. She complained that she has no ability to control her husband's behavior, and that it was unfair for her to be held responsible for her husband's actions.

Mr. Morin continues to have some dealings with the school and students as a substitute school bus driver.

Applicable Employer Policies:
Policy No. 2122
Policy Title: Organizational Structure and Personnel Accountability Chart

Regulations:
All employees of Big River First Nation shall faithfully and diligently carry out duties and responsibilities in the best interests of Big River First Nation, and will carry out lawful directions given to them by their supervisor.

The employer may discipline any employee for cause. Disciplinary actions may vary, subject to managerial discretion, considering the severity of the action, effects of such action, and considering the past performance of the employee.

All employees of Big River First Nation, including non-political board members, shall refrain from engaging in politicking; acting against the interests of the band office or any of its agencies or corporations. No staff or non-political board member may use their position with the Big River First Nation for personal or political gain without first obtaining a leave of absence. No member or staff may engage in any court action of any nature whatsoever against the Big River First Nation, its agencies, corporations or affiliates. No member of the immediate families of any staff or non-political board member may conduct themselves contrary to this personnel policy manual. In such event, the staff or non-political board member may be subject to discipline in accordance with this manual. (emphasis added)

All employees of Big River First Nation shall respect and adhere to established lines of authority in carrying out their duties and responsibilities. In any matters of dispute regarding conditions and terms of employment, all employees shall first and foremost discuss issues of discrepancy with their immediate supervisor. In such a case where the matter at hand is not resolved satisfactorily at his level, the employee shall then discuss the matter with both his immediate supervisor and the Manager. Under all circumstances, Big River First Nation employees shall refrain from engaging in political negotiations with Big River First Nation board members, Chief and Councilors, and other political representatives with respect to conditions and terms of employment.


Policy No. 7301
Policy Title: Employee Discipline

Regulations:

73.01             An education employee may be disciplined for the following reasons:
7301.1.1         misconduct in terms of attendance, work performance, following grievance protocol.
7301.1.2         personal behavior, which brings the school or the teaching staff into disrespect in the community.
7301.1.3         refusal and/or neglect to obey any lawful order of his/her supervisor.

7301.2            Except in cases of serious misconduct, an employee is entitled to receive an oral reprimand and two written reprimands, in that order, before suspension or dismissal.

7301.3 Oral Reprimands:
7301.3.1          An oral reprimand is a verbal disciplinary action which includes a statement of what the employee has done wrong, how he/she should correct it, and what will happen if the misconduct continues.
7301.3.2          The date and nature of the oral reprimand will be recorded and placed in the employee's file.
7301.3.3          During an oral reprimand, the employee may choose to have a witness present.

7301.4 Written Reprimands
7301.4.1          A written reprimand is a statement in writing given to an employee by his/her supervisor in cases of misconduct.
7301.4.2          The written reprimand must explain the nature of the misconduct, the corrective action expected of the employee and a description of the actions likely to be taken if the employee persists in his/her misconduct.
7301.4.3          A copy of the written reprimand shall be placed in the employees file.

7301.5 Documentation regarding reprimands will be removed from the employee's file after a period of two years.

7301.6  Suspension:
7301.6.1       Suspension is an enforced, temporary absence from duty.
7301.6.2       Suspension may be used in the rehabilitation of an employee in which case the suspension will be for a specified period of time.
7301.6.3       Suspension may be used pending investigation or Band Council consideration in which case suspension may be for an indefinite period of time.
7301.6.4       Suspensions may be with or without pay depending upon the nature of the employee's misconduct and the decision of the Chief and Council.
7301.6.5       If found innocent, employees will receive pay withheld during the suspension.

7301.7  Dismissal/Termination of Contract
7301.7.1       Persistent misconduct and/or accumulation of one or more suspensions may result in dismissal or termination of contract.
7301.7.2       All dismissals must be approved by Chief and Council.
7301.7.3       All employees have the right to appear before the Chief and Council to appeal a dismissal or termination of contract.
7301.7.4       During the probationary period of any education staff's contract, the employer may terminate the contract, at any time, for any reason. The employer will give one pay period notice. No reason or cause is necessary as this is a probationary period."

"Policy No. 7104
Reasonable cause for termination of contract shall include, but not be limited to:

7104.16.8        Performance of an action or inaction that constitutes disrespect to the employer or its institutions.
7104.16.11      Failure to follow grievance protocol.     

Policy No. 7222
Policy Title:  Staff Code of Ethics

7222.5             Staff shall make a Commitment to the Profession to:
7222.5.1          Conduct oneself in personal behavior in a manner that will not bring the school or the teaching profession into disrespect in the community.

Applicable Provisions of the Canada Labour Code:                                 

"242. (3)         Subject to subsection (3.1), an adjudicator to whom a complaint has been referred under subsection (1) shall
(a)        consider whether the dismissal of the person who made the complaint was unjust and render a decision thereon; and
(b)        send a copy of the decision with the reasons therefor to each party to the complaint and to the Minister.

(4)   Where an adjudicator decides pursuant to subsection (3) that a person has been unjustly dismissed, the adjudicator may, by order, require the employer who dismissed the person to
(a)    pay the person compensation not exceeding the amount of money that is equivalent to the remuneration that would, but for the dismissal, have been paid by the employer to the person;
(b)   reinstate the person in his employ; and
(c)    do  any other like thing that it is equitable to require the employer to do in order to remedy or counteract any consequence of the dismissal."

Employer's Arguments:
Counsel for the Employer argued that there was adequate evidence presented to uphold the Employer's conclusion that it had just cause to dismiss the Applicant from her employment. Mr. Cherkewich argued that the incident involving Mr. Morin was serious enough, on its own, to justify the dismissal of the Applicant. Mr. Cherkewich also argued that the incident dealing with Mr. Morin could be seen as a culminating incident in that the Applicant had received two oral reprimands and one written reprimand prior to her dismissal.

Mr. Cherkewich argued that the Employer acted appropriately in dismissing the Applicant given its goal to protect the safety of children attending school and employees employed at the school. Mr. Cherkewich argued that the Employer's policy of holding staff responsible for the actions of guests who attended the school was reasonable.

Applicant's Argument:
Mr. Klassen argued that the onus was on the Employer to prove just cause and that the Employer had failed to do so. Mr. Klassen complained that the Applicant was still none the wiser as to exactly why her employment was terminated, in that no one on the Education Advisory Board testified as to why the Applicant's employment was terminated. Furthermore, Mr. Klassen argued that the Employer's Policy, that a staff member could be disciplined for a visitor's behavior, was unreasonable.

Mr. Klassen argued that even accepting the Employer's Policy to discipline the Applicant for her husband's behavior was reasonable, the Applicant was never given a chance to confront her husband or to in effect attempt to control her husband so that he did not attend at the school again and cause a disturbance.

Mr. Klassen also argued that while the actions of Mr. Morin were inappropriate and wrong, they were not serious in that there was no violence involved and no police action was taken. As such, termination of the Applicant's employment was excessive.

Mr. Klassen asked that the Applicant be reinstated and that she should receive full back pay.

Analysis:
The Reasonableness of the Employer's "Guest Policy":
Mr. Jean testified, as set out in his memorandum to the Education Advisory Board, that staff members are responsible for the behavior of their guests to the school. Mr. Jean originally provided the Applicant with a written reprimand for her husband's actions. This written reprimand, much to Mr. Jean's surprise, was changed to the dismissal of the Applicant.

During the Employer's argument, many scenarios were discussed and the reasonableness of the Employer's Guest Policy was probed. For example, counsel for the Employer was asked about the factual scenario where a husband and wife were separated, and the husband attended at the school where his wife was employed, and acted inappropriately. Counsel for the Employer responded that pursuant to the provisions of the policy, the wife would be held responsible for her husband's actions. The discussions also covered the scenario where the husband was vindictive towards his spouse, and was aware of the Employer's Guest Policy, and was in reality attempting to have the spouse disciplined. Mr. Cherkewich provided that the staff member would be responsible for her husband's behavior.

With respect, the policy of the Employer that staff members are responsible for the behavior of visitors or guests to the school is an unreasonable one. The scenarios discussed with counsel for the Employer demonstrate this fact. It is accepted, that an Employer may dismiss an employee for willfully breaching known and reasonable workplace rules or policies. What rule then did Mrs. Morin willfully breach? The facts are that her husband came to her workplace, uninvited by her, and got into an altercation with Mr. Jean. Mrs. Morin had nothing to do with this altercation.

If the concept of progressive discipline is to be accepted, as set out in the Employer's Policies, what "corrective action was expected of Mrs. Morin"? How was she to be "rehabilitated" so that she could change her behavior?

The answer is that no corrective action could be expected of Mrs. Morin, as discipline imposed on her would be as a result of the actions of a third person, Mr. Morin. The fact that Mrs. Morin could not take any corrective action for the actions of a third party demonstrates that the Employer's Guest Policy is unreasonable.

Given that the Employer's Guest Policy is unreasonable, the dismissal of Mrs. Morin from her employment by the Employer was unjust.

If I had found the Employer's Guest Policy to be reasonable, I would have found that the penalty of discharge was far too severe a course of action to take and that the penalty should not have been changed from a written reprimand to dismissal for the following reasons. Firstly, Mrs. Morin was an 11 year employee with a satisfactory work record. Secondly, Mr. Morin's actions, though inappropriate, were not of such a serious nature as to result in the Applicant's dismissal from her employment. Thirdly, accepting that the Applicant is responsible for her husband's actions, the Applicant should have been given the opportunity to attempt to control her spouse and ensure that her spouse did not attend at her workplace and act in an inappropriate manner.

It is therefore the finding of this Adjudicator that the Applicant is to be reinstated in her employment with the Employer, and that the Employer is to pay to the Applicant compensation for all lost wages from and after October 7, 2005 to the present date, less the two weeks notice previously paid by the Employer to the Applicant.

DATED at Saskatoon, Saskatchewan, this 29th day of June, 2006.
________________________________
Walter J. Matkowski, Adjudicator