Arbitrator upholds 3- day suspension for COVID-19 protocol insubordination

A New Brunswick worker’s suspension for insubordination has been upheld by an arbitrator as a legitimate discipline under the collective agreement.

Kevin Cook was a labourer/operator in the public works department with the Town of Quispamsis, N.B.

In March 2020, the town started implementing safety measures in response to the COVID-19 pandemic.

On March 30, Cook woke up feeling sick, so he called the province’s “tele-care services” line. He also texted his supervisor to say he wasn’t coming to work because he wasn’t feeling well.

The town’s HR manager decided to call Cook and go over the COVID-19 screening questions to see if he had any symptoms. If he did, the town would have to identify any employees who had been in contact with him and send them home to isolate. Cook would also have to receive a negative test result before returning to work.

Cook was surprised by the call and he refused to answer the screening questions. When she tried to explain why she was asking the questions, Cook kept interrupting her and telling her he had never had to give a reason for calling in sick before. He called a couple of hours later to say he had heard back from tele-care services and a nurse told him that he didn’t need to get tested but he should stay home until he felt better.

On April 3, the public works department called a meeting to discuss COVID-19 directives. Cook, who was a shop steward, asked some questions and wasn’t satisfied. He said loudly, “This is bulls---!” and walked out.

On April 21, the HR manager and the department manager met with Cook to discuss the March 30 and April 3 incidents. The HR manager again tried to explain the screening questions on the phone call, but Cook kept interrupting her and said he had felt interrogated.

Cook also said that he had made the comment at the meeting because employees weren’t getting satisfactory answers. He also said he had left because it was near the end of his shift and he had to pick up his children. He later admitted that he shouldn’t have left.

When he was told that his behaviour hadn’t changed since a one-day suspension in May 2019 and they were considering the next step in the collective agreement’s progressive discipline process, Cook looked at his manager, leaned forward, and said that he hoped he could meet him “outside of work and have a man-to-man conversation.” He was asked if that was a threat, to which he replied no and repeated the statement.

Cook received a three-day suspension for insubordination. The union grieved the suspension, arguing that Cook had a reason to be suspicious in the phone call, he was acting as a shop steward during the April 3 meeting, and he didn’t threaten the manager.

The arbitrator found that it was reasonable for the town to inquire if Cook had any COVID-19 symptoms. However, when Cook said he had called tele-services and then called back to clarify his symptoms, it should have been sufficient. Although Cook could have responded better, the incident wasn’t worthy of discipline, the arbitrator said.

The arbitrator also found that there was no evidence that Cook was acting as a shop steward when he swore and left the April 3 meeting. His actions were disrespectful and demeaned the town’s authority in front of coworkers, said the arbitrator.

Finally, the arbitrator found that Cook’s conduct in the disciplinary meeting was confrontational and disrespectful. In addition, it was reasonable to interpret his body language and the “man-to-man conversation” comment as a threat, said the arbitrator.

Since Cook had a previous suspension on his record, the arbitrator determined that the three-day suspension was appropriate as it followed the collective agreement’s progressive discipline procedure.