THUNDER BAY — The City of Thunder Bay has been ordered to reinstate a probationary firefighter who was terminated for using his personal cell phone at work.
The Thunder Bay Professional Firefighters Association grieved his dismissal alleging that it violated the collective agreement.
In 2018, the man was one of eight people chosen from among 350 who applied to join the fire department.
Three months into the standard one-year probationary period, he was called to a meeting and presented with a letter stating he had been deemed "unsuitable."
According to his superiors, he had violated operating guidelines for the use of personal electronic devices on three occasions.
Management said he was cautioned after the first incident, when he was caught using his phone without permission while filling oxygen cylinders in the fire station.
On that occasion he accepted full responsibility for his actions.
The termination letter stated that In a second incident two months later, during a work assignment he was found in the locker room with his cell phone in hand, but said he believed the lunch break wasn't over yet.
Ten days after that, he was again found in the locker room with his phone in his hand, at a time when recruits were supposed to be cleaning up after a training exercise.
In his termination letter, his superiors said failure to follow rules is insubordinate and a breach of Thunder Bay Fire Rescue's Code of Discipline, and that "following rules...is critical to the effective operation of the fire service and to the health and safety of all employees."
Department policy states that personal phones and electronic devices can only be used with the permission of an officer, only during free time, that their misuse will result in the loss of cell phone privileges, and that this may result in disciplinary action.
Arbitrator Owen Gray, however, found that the evidence presented at the arbitration hearing varied "substantially" from what the fire department's senior leadership believed had actually happened, and which formed the basis of their decision to terminate him.
Gray said "there is no doubt" the trainee breached the cell phone rules early during his probation, but the incident was not treated, on its own, as a basis for concluding he was unsuitable.
He noted, though, that the recruit had been taught that he and the other rookies didn't [emphasis added] require occasion-specific permission to use their phones in the locker room during a break or lunch.
"When the Deputy Chief decided to discharge the grievor, he believed that the grievor had been taught the opposite," Gray said.
The arbitrator also pointed to inconsistent evidence – related to the second incident – over whether the recruit had gone to the locker room and used his cell phone after being ordered to do something else, since he testified that he believed it was still the lunch period.
Finally, Gray said it was not clear whether or not a lunch break had been declared the third time that the man was found with his cell phone.
"Although not without some doubtful hesitation, but on a balance of probabilities, I accept what the grievor says about the circumstances in which he came to believe that it was lunch time," he wrote in his decision.
Gray added that even if it were true that the trainee should have done more to verify that lunch had been called, "it would take more than this one incident..to justify a final conclusion that the grievor was unsuitable because he lacked the judgment to strike the necessary balance" between taking action on the one hand and taking the time to gather more information.
He ordered his reinstatement as a probationary firefighter, as well as compensation for any economic loss the recruit suffered as a result of his discharge nearly two years ago.