‘The incidents he engaged in were quite egregious and well-documented,' says lawyer discussing Ontario decision
An Ontario arbitrator has upheld the dismissal of a unionized worker following a series of misconduct incidents in one day that occurred shortly after the workforce returned from a contentious strike.
The worker was an employee of Cambridge Brass, a producer of brass fittings and components in Cambridge, Ont., since 2015. He worked in the plant’s shipping area.
Cambridge Brass employees went on strike in July 2024. During the strike, supervisors did much of the bargaining work, including shipping. In addition, the worker was one of two employees who exhibited questionable behaviour on the picket line.
The strike ended in early October after 12 weeks, although the union didn’t get what it wanted and there was some frustration by employees. Cambridge Brass signed a no-reprisal agreement and implemented a new code of conduct.
On Oct. 8, a few days after the strike ended, the worker was back at work as a wrapper, wrapping boxed products on a skid, checking them, and preparing them for shipping. Before the strike, he had been a lead hand, but the company removed him from the role following the strike.
Refusal to follow directions
A supervisor approached the worker and he said there was a mistake in the computer system that resulted in products for two different customers being on one skid. The supervisor asked the worker to fix it by separating the products onto separate skids, but the worker responded by swearing and saying, “You guys fix it, you did such a great job during the strike, you fix it.”
The supervisor found the worker’s tone to be aggressive and asked him to calm down, saying that mistakes happen, and they should move on and fix the problem. The worker replied, “F--- that,” so the supervisor separated the product onto two skids herself.
Once the product was separated, the supervisor directed the worker to call the third-party distributor to pick it up, to which the worker replied once again, “f--- that.” The supervisor went to the service department to make sure the product would be picked up and the worker clapped his hands in a mocking gesture.
A short time later, the company’s director of operations told the supervisor that he had heard the worker was no longer in the shipping area. Two employees confirmed that the worker had left the building.
One of the employees also pointed out several boxes of brass filings that had fallen to the floor, saying that the worker had hit the skid with a forklift shortly after the interaction with the supervisor.
The supervisor and the director of operations reviewed surveillance videos that showed the worker’s interaction with the supervisor, running into a pallet with the forklift, and then leaving work.
Termination for cause
The director of operations called the worker to ask why he had left, but the worker didn’t provide a legitimate reason. The next day, the director texted the worker to inform him that his employment was terminated.
The union grieved the termination as excessive. It pointed to the worker’s 9.5 years of service and the fact that he was frustrated because of losing the lead hand position and the recent strike. The worker claimed that he had tried to notify the supervisor before he left, but there was a rule about not entering the supervisor’s office without permission.
The worker also said that he had a family and personal financial stress, so he would suffer significantly from losing his job. He also said the forklift accident wasn’t intentional as he had just lost control of it while trying a difficult maneuver.
“If you find out a terminated employee has kids, that will tuck at the heartstrings of the arbitrator,” says Charles Millar, a senior associate lawyer at Achkar Law in Toronto. “Although this worker did have a family and [the dismissal] caused extra hardship, it wasn't a big factor in the board’s decision - anytime someone loses their job, it causes economic hardship.”
Insubordination
The arbitrator found that the worker’s explanations lacked credibility and he engaged in “serious industrial misconduct.” It was clear that the worker disobeyed a direct order from the supervisor and swore at her, which was insubordinate, said the arbitrator. While there could be some degree of “shop talk” at the plant that could involve swearing, saying “f--- that” directly at a supervisor was never acceptable and the worker added to the insubordination by refusing a second order and mocking the supervisor with clapping, the arbitrator said.
“We all know in unionized environments, there's ‘shop talk’ where people swear around each other, but that doesn't excuse insubordination,” says Millar. “Shop talk is just people swearing and telling naughty jokes, but turning around and cussing out your supervisor is still unacceptable in any environment.”
The worker’s assertion that he was ill and that the forklift had simply “got away from him” was inconsistent with the video, which showed a controlled impact with body language that didn’t show surprise and no attempt to fix things or tell anyone. The arbitrator found that the worker purposefully struck the pallet and lied about it.
The arbitrator also found that leaving the workplace without supervisory approval contravened the company’s new code of conduct and was detrimental to the company getting work done with its specific complement of employees on any given day. Although the worker said he attempted to contact the supervisor and referred to an alleged rule about entering the supervisor's office, the arbitrator found these claims uncorroborated and lacking credibility. In addition, the worker’s attempt to contact the supervisor demonstrated that he was aware that he wasn’t supposed to leave without approval, the arbitrator said.
The arbitrator accepted that the post-strike environment contributed to heightened emotions but found this didn’t excuse the worker’s behaviour, which involved “three incidents of serious misconduct, including intentional damage to company property, and in a context where other employees may have been at risk of injury.” The arbitrator also found that they were separate incidents in a short period of time.
Disciplinary history
The arbitrator also noted that the worker’s work history included eleven different disciplinary incidents related to attendance and a prior violation of the workplace violence policy, and the worker expressed little remorse and no apology during the company’s disciplinary process or the arbitration hearing.
It’s often not advisable to make a termination decision so quickly after misconduct, but sometimes the misconduct warrants it, according to Millar.
“Progressive discipline, especially in a unionized environment, is paramount - but this particular worker didn't have a clean record and the incidents he engaged in were quite egregious and well-documented,” he says. “They were videotaped and there were witnesses, so there was no doubt that he engaged these acts - he was insubordinate by swearing at his supervisor, and that in and of itself could almost be argued to be grounds for just cause termination.”
And insubordination wasn’t even the worst element of misconduct, says Millar.
“The most egregious misconduct was damaging company property - and by the looks of it quite intentionally, or at least he just didn't care what he was doing,” he says. “Despite the worker’s claim that the forklift got away from him, the video showed that he did it intentionally and he was unapologetic about it.”
“Furthermore, not only was there damage of the employer’s property, but it was also pure blind luck that no employee was injured,” adds Millar. “It was done with intention, so my instinct is that that this incident alone, because he damaged company property and potentially endangered the safety of others, would have justified termination.”
The grievance was dismissed and the worker’s termination was upheld.
Progressive discipline
Even when serious misconduct is involved, employers have to assess the evidence, the role of progressive discipline, and any mitigating factors such as the ones the union raised in this case, says Millar.
“Even if an employer has what looks like slam-dunk evidence where no one denies that the employee has done something that merits termination, you have to look at the mitigating factors,” he says. “That's when it's crucial for employers to make sure that there's nothing to justify or forgive somebody for behaving the way they did – it’s always something you sit down and really consider, no matter how strong the evidence is.”
In this case, although the termination happened quickly, it appears that management was measured, according to Millar.
“When [the worker] swore at and mocked the supervisor, she didn’t react or yell back, she just went and did the job herself,” he says. “And likely part of the reason why this decision went in [the employer’s] favour is because before they terminated, they likely sat down and really considered the justification for letting a seven-year tenured employee go based on his history and the seriousness of his misconduct.”
See USW, Local 4045 and Cambridge Brass Inc. (Cox), Re, 2025 CarswellOnt 6241.
