Dismissal wasn't for poor performance and didn't negate right to recall for seasonal worker: Arbitrator
A New Brunswick seasonal park worker who was terminated at the end of one season had her right to recall breached when she wasn’t rehired the following season, an adjudicator has ruled.
In 2010, the New Brunswick legislature passed amendments to its Public Service Labour Relations Act that included casual employees within its definition of “employee.”
In September 2012, New Brunswick and its main union reached an agreement that entitled “previously excluded casual employees” to eligibility for recall for seasonal work for which they were previously employed. The right to recall was to be based on “seniority and satisfactory work performance.”
In 2013, a casual seasonal employee — referred to as L.P. in court documents — worked at a provincial park as a receptionist for her fifth season. L.P. had received mostly positive assessments of her job performance up until then. In 2012, there began to be lower ratings in areas of teamwork, but her assessment indicated she was willing to improve.
In August 2012, L.P.’s supervisor had a discussion with her regarding telephone procedure. The main phone line was only to be answered in reception if it was answered at the bus kiosk first, and administration should answer it if reception wasn’t available. L.P. indicated it was difficult to answer the phone in reception because it was noisy and interfered with customer service. L.P. also pointed out the previous supervisor and said reception should not answer the phone at all when serving a park guest.
The next day, L.P. didn’t answer the phone at all and said she was being tested when asked about it. She was told she should answer the phone when possible, but L.P. disagreed. She was then directed to answer the phone and she replied “if the answering of the phone is a priority over serving our guests, I will oblige.”
The supervisor considered the record of discussion from this incident to be a verbal warning, which was the first of three disciplinary steps the department of tourism utilized with employees.
L.P. returned to work at the park in 2013 and applied to be a gift store supervisor. However, when she found out the position wasn’t unionized, she decided to stay in her unionized position at reception. She asked other employees about their union status and pay rates, but the supervisor felt this “created doubt among the staff” and violated the department’s no gossip policy. L.P. also asked others about tasks they performed during slow times after she was given some data to enter during her own slow times. L.P. was told to come to her supervisor if she had questions and not make inquiries on her own. L.P. responded that “I will continue to question answers when I get two different versions of what situations occur. I will always need the truth, which is the only thing I will deal with happily.” L.P. received a second record of discussion on Sept. 4, 2013.
On Sept. 19, a group of nine guests with discounted tickets requested a refund because of limited access to the park’s natural attractions due to the timing of the tides and access to the ocean floor. Another employee tried to convince them to stay and view the high tide and then return later, as their passes were good for two days. However, L.P. gave the customers a refund.
Later that day, L.P. was heard on the phone telling someone there was “no point” in coming to the park because access to the ocean floor was at 4:30 and they closed at 5 p.m. Another employee said access was actually at 3:30, but L.P. argued that was only s a small part and the entire area wasn’t accessible until 4:30.
L.P. was given another record of discussion and written warning, stating that guests must be given “consistent and accurate information.” L.P.’s advice to guests was characterized as “unacceptable as we are losing guests and they are missing out on the opportunity to access to ocean floor or visit altogether.”
L.P.’s supervisor informed her she had to “write it up” for the HR department, and she should keep it confidential. However, L.P. responded by email that should would discuss being “written up” with whoever she chose. L.P. then posted a copy of the email on an employee bulletin board. Management felt this escalated things to a “poisoned environment.”
On Sept. 30, L.P.’s employment was terminated for displaying “no willingness to see the big picture” and rationalizing her behaviour as dedication to customer service. She was paid up to Oct. 11, which was the day the park closed for the season.
In May 2014, the park opened for the season and L.P. was not recalled. She filed a grievance claiming a breach of her seasonal recall right.
The adjudicator found the collective agreement indicated an intention to ensure the employer acted fairly and reasonably when determining whether a seasonal employee performed at a satisfactory level for the purposes of determining seasonal recall. The records of discussion issued to L.P. expressed “an underlying fear that any suggestion of dissent will undermine the ‘team’”, and didn’t go into specifics about what L.P. did that was misconduct.
The adjudicator noted that L.P.’s actions regarding her responses and posting the confidential email on the bulletin board warranted discipline, but termination was not a reasonable response. The previous warnings were each a step of discipline and termination was considered the next step without suspension as an option.
