Last-chance agreement, terminations don’t change behaviour
An Air Canada worker who was fired four times for insubordinate and rude behaviour didn’t get another reinstatement.
The worker was a flight attendant for Air Canada. In December 2012, he was suspended for 14 days. In June 2014, he was terminated but later reinstated with a long suspension. His problems continued and Air Canada terminated his employment again in January 2016, but he reached a settlement that allowed for his reinstatement with several conditions, including that he conduct himself “in a professional and respectful manner at all times.”
The worker was unable to live up to the conditions of reinstatement and he was terminated for a third time in December 2016. However, after mediation in July 2017 he was reinstated on a last-chance agreement requiring him to “demonstrate exemplary conduct at all times.”
There were delays to the worker’s return to the workplace due to operational issues that frustrated the worker.
In a July 16, 2017 call with his cabin crew manager, the worker was rude and insubordinate. He yelled at the manager and continued to do so when she asked him to stop. The call ended abruptly, though it was unclear if the worker hung up.
The worker had a second call with the lead scheduler on Aug. 7. The worker said he wanted to use 2016 vacation entitlements to take the month of September off, but the scheduler informed him he didn’t have enough remaining entitlements. This made the worker upset and he said he wasn’t happy to return to work, which surprised the scheduler because every other employee she had helped was positive in returning to work. When she mentioned this to the worker, he made disrespectful, profane, and disparaging comments that left her “shaken and upset.” The scheduler wrote up a report of the call saying the worker “went on a rampage… he went nuts.”
The worker disagreed that he behaved poorly during the two calls. He claimed there were disagreements between colleagues, but they were “amicable.” In the first call, he said the cabin crew manager told him things that weren’t true, so he tried to “dumb it down” but wasn’t disrespectful. He also claimed in the second call, it was the lead scheduler who became aggressive and acted improperly.
Air Canada determined that the worker breached his last-chance agreement with continued inappropriate behaviour, so it terminated him for a fourth time. The union grieved the termination, arguing that the worker was “an exuberant individual, a person who says what is on his mind, and does so in an honest, respectful and forthright fashion.” It claimed he didn’t act unprofessionally, and the calls involved “a series of misunderstandings and mischaracterizations.” It acknowledged the worker’s manner could be “off-putting to some people but he was a long-standing employee who was “understandably frustrated” by the reinstatement process.
The arbitrator noted that it wasn’t unusual for an employee to feel stress and frustration in a reinstatement process, especially if it wasn’t going as quickly as the employee would like. However, the evidence of the cabin crew manager and lead scheduler was consistent, and they had no reason to exaggerate, while the worker had a history of poor behaviour and had an inconsistent account of the calls.
The arbitrator found that the worker’s disciplinary history and last-chance agreement meant that he knew he had to act in “an exemplary fashion” and “this was truly his last chance.”
“Whether he had a long disciplinary record or not, or whether he was subject to a last change agreement or not, [the worker] could have and should have acted politely and professionally to members of management,” said the arbitrator in dismissing the grievance. “There was no evidence of provocation and no reason for the [worker] to have behaved the way he did.”
Reference: Air Canada and CUPE, AC Component. William Kaplan — arbitrator. Alexandra Meunier for employer. Megan Reid for employee. April 1, 2019. 2019 CanLII 24931.
