Misconduct wasn't at insubordination level, but was disrespectful
An Ontario arbitrator has struck a written warning against a worker for parking where he shouldn’t, but has upheld a three-day suspension for giving his manager “the finger.”
The worker was employed with Active Dynamics Group, a manufacturer of exhaust systems in Scarborough, Ont. Hired in 2013, he was an operator in the manufacturing side of the plant. He was also a union steward with one instance of discipline for insubordinate behaviour on his record.
Active Dynamics had a policy that required hourly employees such as the worker to park at the rear of the plant. A parking lot at the front of the building was reserved for salaried employees. Any hourly employees caught parking in the front lot would be warned on the first occasion and disciplined on the second.
In late summer and early fall of 2022, the worker’s car was vandalized multiple times in the back parking lot. The worker reported it to the director of operations, who allowed him to park in the front lot as it had better lighting and more cameras. By December 2022, there were no further incidents of vandalism, so the worker’s supervisor told him to move his car to the back. The worker was reluctant, but he agreed to do so. However, he believed that this didn’t mean he could no longer park in the front as no one in management had told him that.
Manager ordered worker to move car
On Jan. 12, 2023, the operations manager noticed that several hourly employees had parked in the front parking lot, including the worker. He instructed them to remove their vehicles, but the worker said that the director had said it was okay for him to park in the front as his car had been vandalized. The operations manager called the director, who explained that no hourly employees were allowed to park there, so the worker said he would move his car after he punched in.
The worker went to the director’s office and asked if he had to move his car. The director explained that since nothing had happened for months, he had instructed managers to tell him to park in the back.
The worker came back out to move his car and, as he backed out, he rolled down his window and told the manager he wanted to explain. The manager said he didn’t need an explanation and he should just move his car, which upset the worker. The worker shouted at the manager that he was nothing to him and, as he drove away, he stuck out his arm and gestured with his middle finger.
According to the worker, the manager started yelling at him as he moved his car and raised his hand in a “physical violent gesture.” The worker said that he replied that he wanted nothing to do with him, but he denied raising his voice or giving him the finger.
Video surveillance footage showed the worker backing his car out and the manager walking towards his car. They appeared to exchange words and the passenger-side window of the worker’s car rolled down as the car backed out. The video showed the worker’s car driving away off-camera before any gesture was made, but the car could be seen slowing down with the brake lights on, followed by the manager pointing towards the car as if something had happened.
Written warning, suspension
Active Dynamics issued a written warning to the worker for failing to move his car when first ordered to do so. The company also suspended the worker for three days for the obscene gesture.
The company maintained that the worker was insubordinate when he refused to move his car, which was serious misconduct. His gesture was also serious misconduct that was grounds for severe discipline, it said.
“The manager did the right thing in reporting the worker’s misconduct – there was an altercation with a heated exchange, but people are human and they react,” says Lorenzo Lisi, leader of the Workplace Law Group at Aird and Berlis in Toronto. “It was considered to be quite serious, it was a sign of disrespect [to the manager].”
The union grieved both the warning and the suspension, arguing that the worker didn’t refuse to move his car as he genuinely believed that he had permission to park in the front lot and no one had informed him that permission had been revoked. He also moved his car immediately when the director instructed him to move his car, said the union, adding that the worker had 10 years of seniority with no prior discipline.
The union also pointed out that Active Dynamics didn’t discipline another employee who was initially resistant to removing his car that day and there was no proof that the worker made an obscene gesture. It also suggested that the worker was targeted for being a union steward who had raised several issues recently.
The arbitrator found that, on the surface, it appeared that the operations manager repeated a clear order for the worker to move his car and the worker didn’t initially obey that order. However, that order conflicted with the worker’s understanding that he had permission from the director to park in the front lot – permission that he didn’t know had been revoked until he spoke to the director following the manager’s order, the arbitrator said, adding that the worker didn’t appear to understand that when the manager called the director. The worker complied once he clarified the matter, so it wasn’t insubordination, the arbitrator said.
When considering whether the worker was insubordinate, two elements were key to the context of the situation, according to Lisi - the worker believed that he could park in the front lot and the manager was dealing with him as an employee who shouldn’t be in the parking lot, not a union steward.
The arbitrator noted that no one was disciplined on that day and the manager only reported the incident after the worker gave him the middle finger. It was clear that discipline only followed the gesture, said the arbitrator.
Not insubordination, but serious misconduct
The arbitrator found that it was likely that the rude gesture happened, as the manager’s account of events was credible and the video footage, while not actually showing it, depicted actions that were consistent with that happening – the worker’s car slowed down, the worker opened his window, and the manager reacted.
“The worker said the manager followed him, but that’s not what the video revealed,” says Lisi. “Although you can’t see the actual gesture, it was consistent with the manager’s account that the worker gave him the middle finger - the video didn’t show the manager as the aggressor, it showed an altercation in the parking lot where the conduct afterwards was meritorious of discipline.”
The arbitrator found that giving the middle finger to a manager is similar to telling them to “f--- off,” which was “rude, profane, and worthy of discipline.”
“They had evidence of the equivalent of telling someone to ‘f--- off,’” says Lisi. “It’s not a disagreement - flipping the bird is fairly serious misconduct. The worker likely wouldn’t have received any discipline if he hadn’t flipped the bird.”
As for the worker’s status as a union steward, the arbitrator found no evidence this was a factor in the discipline. The evidence showed that management had a good working relationship with the worker and the issues he brought forward were related to human resources, not management.
The arbitrator determined that Active Dynamics did not have cause to issue a written warning to the worker for his first encounter with the operations manager, but the three-day suspension was appropriate discipline for his rude gesture. The company was ordered to remove the written warning from the worker’s record, but the suspension was upheld.
“The manager did the right thing by assessing the evidence that he had and taking it to upper management to determine appropriate discipline, and they collected evidence like witness statements and the video,” says Lisi. “Before you issue discipline, gather all the evidence, make sure it’s consistent so when you make the decision and it’s challenged, you didn’t miss something.”
Sometimes employers have to make a stand to protect their managers, according to Lisi.
“It would have been easier to reduce the discipline, but you’ve got to support managers and supervisors - they’re on the front line,” he says. “That deterrent and support for managers, it makes managing the workplace easier for supervisors.
“Employers can’t do whatever they want, but if they have the evidence they can draw a line in the sand [for disrespectful behaviour].”
