Comments not directed at colleague; mixed messages on extra task
A worker’s heated exchange with a colleague and refusal to perform an additional task that turned out to be unnecessary wasn’t insubordinate enough to constitute cause for dismissal, the appeal body of the Alberta Labour Relations Board has ruled.
McStaff Mechanical performs maintenance on vehicles and heavy-duty equipment at the Imperial Oil refinery near Sherwood Park, Alta., as well as field work.
McStaff hired the worker in October 2018 as a heavy equipment technician apprenticed to the owner, who was a heavy equipment technician himself. He had no discipline on his record.
When the worker was hired, McStaff’s business was located at a shop in Sherwood Park. In the fall of 2020, the company moved to a shop on a plot of land outside of town owned by the office administrator.
Refusing work normally assigned to junior employees was insubordinate but termination was excessive, an arbitrator ruled.
Repairs to customer’s truck
McStaff’s owner went on vacation for five days starting on Oct. 6. Before he left, it was agreed that a regular customer who resided nearby would bring his truck in for repairs on Oct. 6. The customer had a busy schedule with a limited window for maintenance.
The repairs were to be the replacement of trailer axle torque rods, which had been ordered and were ready. The customer discussed with the owner a concern about a leak in the truck’s rear axle and the owner said that he would take care of it, but no parts were ordered to repair the seal.
The customer finished early on Oct. 5, so the worker travelled to the customer’s yard and started working on the truck. He completed about half of the job by the end of the day.
The worker had a medical appointment in the morning of Oct. 6, so afterwards he went to the shop to pick up a torch to cut bolts that were seized tight. He took the owner’s service truck, which had acetylene tanks. However, he discovered that the tanks were empty, so he went back to the shop to get a reciprocating saw.
That afternoon, the office administrator went to the customer’s yard to check on the worker’s progress. She noticed that the saw he had was one belonging to her property, not the shop itself, so she asked the worker to retrieve the McStaff saw.
A union representative who ignored directions to stop posting notices was insubordinate and not protected from discipline, according to a BC arbitrator.
Short argument
The customer asked the administrator if the leaking seal was being fixed, so she asked the worker about it. The worker replied with profanities that it was another employee’s job – although the worker denied saying it.
The office administrator returned with the proper saw, which led to a heated discussion with the worker. According to the worker, he was calm and told her that he disagreed with the relocation of the shop from town, outside work at the new shop was on gravel rather than cement, the shop was a mess, the owner was spending more of his time on the farm than the shop, and McStaff’s business was “a joke.”
The worker said that the conversation lasted about five minutes, while the administrator said it was more like 25.
The office administrator was upset and left. She didn’t want the worker at the shop while the owner was away, so she had him do field work for the rest of the week.
The next day, the customer checked the axle himself and found no leak. There was no record that the failure to address the axle seal caused any delay in his use of the truck.
An Ontario worker was entitled to statutory termination pay, even when there was just cause for dismissal, a court found.
Workers’ compensation claim delayed dismissal
On Oct. 9, the worker left a customer’s location and took home a piece of equipment to work on at home. However, he hurt his hand while working on it, so he filed a worker’s compensation (WCB) claim.
The owner and the office administrator decided to terminate the worker’s employment for his conduct on Oct. 6, but they had to wait due to the WCB claim. They followed through and dismissed the worker for cause on Oct. 19.
The worker filed a complaint for pay in lieu of notice and an employment standards officer ordered McStaff to pay the worker $2,483 termination pay plus a 10-percent order of officer fee.
McStaff appealed, asserting that it had just cause to terminate the worker’s employment for “insubordination arising from a refusal to perform work” and making derogatory comments to the office administrator.
One heated argument and an insult did not constitute workplace harassment, the Ontario Labour Relations Board found.
Mixed message on extra repair
The board’s appeal body found that it was unclear if any directions to repair the seal were given to the worker, and there were mixed messages since the owner had said before his vacation that he would take care of it. The worker was also not advised that he would be disciplined up to and including termination if he didn’t address the seal, said the board.
In addition, the seal didn’t need repairs anyway, and there was no evidence of any delay to the customer, the board said.
The board also said that it was most likely that the heated exchange between the worker and the office administrator was on the shorter side, as the administrator indicated it could not have taken 25 minutes. In addition, the worker’s comments were aimed at the business rather than the administrator, he was frustrated with the move, he was frustrated with having to keep going back to the shop when he was working on the customer’s truck.
The board determined that the worker refused to carry out work or that his comments were insubordinate or disrespectful enough to justify dismissal for cause. The appeal was dismissed and the order to pay termination pay was confirmed.
