MBJ Victory: Arbitrator Upholds Discharge Based Upon Hearsay Evidence
In May 2009, Morgan, Brown & Joy represented a client in an arbitration in which the Union challenged the decision to terminate a 16 year employee of a luxury retail store’s bridal registry department. The employer contended that the employee was terminated because of customer complaints about her performance. Notably, the arbitrator relied heavily on the Company’s recitation of the customers’ complaints and upheld the discharge on the basis of this hearsay.
As is not uncommon in labor arbitrations, the employer did not call the customer to testify about the employee’s poor service. Rather, the employer’s policy is not to inconvenience customers by calling them as witnesses on its behalf in labor arbitration cases. In this case, the employer therefore relied almost exclusively on the hearsay customer complaints to attempt to prove just cause for discharge. In his decision sustaining the discharge and denying the grievance, the arbitrator stated (quotation in italics):
As both parties recognize, hearsay evidence regarding customer complaints is admissible in these types of cases. However, even though it is admissible, hearsay evidence regarding customer complaints is not entitled to the same weight as would be accorded the testimony of a live witness who was subject to cross-examination.
Here, however, the hearsay evidence of customer complaints against the Grievant was both extensive and believable. Many of the Grievant’s customers had similar criticisms of the Grievant’s customer service. For example, the Grievant was criticized by customers on three separate occasions for being “overbearing” and “pushy”… The consistency in the types of complaints made by the Grievant’s customers bolsters the credibility of those hearsay criticisms of the Grievant’s customer service….
Given the extensive and consistent complaints made by so many of the Grievant’s customers over a one year period, the Grievant’s claim that her customer service was above reproach is simply not credible. Notwithstanding the Grievant’s suggestion to the contrary, it is not believable that all of these customers would have been lying or mistaken about the Grievant.
William F. Joy represented the employer.