'You can address multiple types of misconduct under the same progression'
“The big thing to remember when you're dealing with attendance management is, if it's a problem, get yourself a policy. And then when you're applying the policy, make sure that you have very clear standards that employees are expected to meet.”
So says Chris Pelkey, an employment and labour lawyer at McInnes Cooper in Fredericton, after a New Brunswick arbitrator upheld the dismissal of a worker who was disciplined four times for breaching the employer’s attendance policy and then fired for insubordinate conduct.
Kent Homes is a manufacturer of prefabricated wooden homes and structures in Bouctouche, NB. The company had an Attendance Awareness Program (AAP) to regulate absenteeism of workers, as unexpected and excessive absenteeism could disrupt the manufacturing operation. The AAP set a permissible absenteeism rate of four percent with discipline for employees who exceeded that threshold.
The AAP allowed certain types of permissible absences that didn’t count towards the threshold, such as authorized leaves or disciplinary suspensions. Employees who had excessive absences related to personal issues could be referred to an employee assistance program (EAP).
“When you're dealing with attendance management policies, one of the things that you have to do with employees who are frequently absent is give them very clear standards that they have to meet - it's not enough to say, ‘You need to start showing up to work more,’ it needs to be definitive and measurable,” says Pelkey. “That’s something the employer did really well here - they kept good information on average absenteeism rates across the plant, they clearly communicated those rates to the employee, and they made it very clear that he was expected to meet that standard going forward.”
Kent Homes also had a Safe and Respectful Workplace Policy, which broadly indicated that contrary conduct was a violation of the policy. It didn’t provide a list of specific examples of conduct that would lead to discipline.
Worker’s absenteeism worsened
The worker was employed in the production facility, but he had a large number of unexplained and unjustified absences for which he didn’t supply any supporting documents. The worker said that he was lactose intolerant, which made him too sick with digestive issues to come to work at times. He had no family doctor and was undiagnosed. The worker also apparently did not explain his condition to his supervisor, although he had reviewed the AAP with other company policies.
On June 17, 2022, Kent Homes gave the worker a disciplinary report. His supervisor told him that his absenteeism rate was 5.3 per cent, above the four-per-cent acceptable threshold, and this was a first warning.
On Sept. 19, the worker was given a second warning, as his absenteeism rate was at 6.9 per cent. This was followed by a third written warning on Nov. 23 stating that his absenteeism rate had increased to 8.2 per cent. The third warning was accompanied by a three-day suspension with the caution that his next warning would result in a 30-day suspension.
The worker’s supervisor asked him if he needed help getting to work and referred him to the EAP, but the worker responded negatively by saying “Why don’t you make it four days off?” The supervisor was surprised at this comment, but the discipline wasn’t changed.
The worker was also suspended for one day for violating the company’s workplace violence policy by making threatening comments.
Fourth warning for exceeding absenteeism threshold
A short time later, the worker went back to school to obtain his carpenter certification. When he returned to working for Kent Homes, however, his attendance issues continued. On March 6, 2023, he was given a fourth warning for having an absenteeism rate of 10.5 per cent. Although his previous warning and the collective agreement indicated that a 30-day suspension was warranted, the supervisor thought that would be too harsh and imposed a five-day suspension instead.
However, at the disciplinary meeting, the worker was hostile, saying “How dare I have the audacity to be sick on a workday?” He was warned that the next level of discipline was termination and the warning would be counted in his file, but the worker replied, “I really don’t give a f---” and left to continue his shift.
The supervisor reported the worker’s conduct in the meeting to the production line supervisor and the decision was made to terminate the worker’s employment. They met with the worker on March 9 and informed him that he was being terminated for using language in the March 6 meeting that violated the company’s Safe and Respectful Workplace Policy. According to the worker, they weren’t specific about what language he used.
The union grieved the termination and, on March 24, the worker and the union met with the supervisors. The worker intended on apologizing for using profanity in the disciplinary meeting, but the union representative did most of the talking, requesting reinstatement. The representative then told the worker it was his turn to talk and, according to one supervisor, kicked the worker under the table. The worker then apologized for his behaviour, but the supervisor said it was too late.
The union agreed that some discipline was appropriate, but it argued that profanity was common on the shop floor - although the worker acknowledged that he had never heard profanity used by an employee when addressing a supervisor.
Worker’s conduct amounted to insubordination: arbitrator
The arbitrator noted that although the termination letter didn’t specifically state that insubordination was a cause for dismissal, it was a “legal conclusion that can be drawn from the facts.” Failing to report for work and being disrespectful with a supervisor are forms of insubordination, even though they weren’t outlined specifically in the respectful workplace policy, said the arbitrator.
The arbitrator’s finding on insubordination without specific reference to it in the termination letter was consistent with jurisprudence in the labour context, according to Pelkey.
“When you're looking at a termination letter, it doesn't have to set up the specific rules that were broken, but it has to set up the conduct that the employer is going to rely on for the discipline,” he says. “The result may have been a little different if this wasn't in the union context, because the Employment Standards Act in New Brunswick requires that the termination letter set out the reasons for termination in writing - it would ultimately depend the arbitrator, but for a judge, I could see this going the other way in the employment context.”
The arbitrator found that Kent Homes followed the process for misconduct, as the worker was given two warnings and two suspensions – four opportunities to correct his behaviour – before his behaviour at the March 6 meeting. This led to the fifth stage of the disciplinary process outlined in the collective agreement, which was termination of employment, said the arbitrator.
The arbitrator also noted that the dismissal followed “a period of a progressive escalation of the penalties” and the worker’s use of profanity and his attitude were offensive within the context of a disciplinary meeting. Management’s actions in the disciplinary meeting were appropriate to the circumstances and could not be seen as provocative, the arbitrator said.
Lack of remorse at grievance meeting
The arbitrator found that the worker didn’t show any remorse or make an effort to apologize until the grievance meeting two weeks after his discharge, and even then he was reluctant. There was no change in the worker’s behaviour despite the warnings and suspensions, and he didn’t seem to appreciate his circumstances, the arbitrator said.
The arbitrator determined that the worker’s misconduct involving an “unambiguous offensive statement” to his supervisor following a pattern of attendance problems and “cumulative stages of progressive discipline” justified termination of employment. The grievance was dismissed.
Although in this case it didn’t matter that the employer’s respectful workplace policy didn’t specifically outline the type of behaviour that could warrant discipline, it can be valuable to have some degree of specificity in these policies, says Pelkey.
“If there’s a list of situations in the policy of what could breach it, then if something analogous happens, you can hang your hat on that and say, ‘There's something similar in the policy that is prohibited,’ he says. “They just need to make sure that they don't go too far the other way and provide so much specificity that they're excluding things because they forgot to put it explicitly in the policy.”
Pelkey also notes that this case shows that multiple types of misconduct can be used in the course of progressive discipline.
“Employers don't need to silo the misconduct [to advance through progressive discipline],” he says. “Just because the first four offenses were absenteeism-related and the final offense was insubordination and disrespectful language, an employer doesn't need to proceed under separate disciplinary avenues for the two types of misconduct.
“You can address multiple instances and multiple types of misconduct under the same progression.”
