Cheeky staffer upset management did not promote him, arbitrator says
In an unusual move, an arbitrator provided compensation in lieu of reinstatement to a wrongfully dismissed worker.
Bruce Zhang was hired as a wireman, third class by Custom Control Panels in Mississauga, Ont., on Aug. 22, 2011. He had 15 months’ service when he was fired for insubordination on Nov. 20, 2012.
Zhang had his first performance review about nine months into his employment at Custom Control Panels. The review went well. The employer expressed satisfaction with Zhang’s work and promoted him to wireman, second class.
But that was not enough for Zhang. According to the court decision, he was furious and insisted he should have been promoted to wireman, first class.
The next performance evaluation came six months later. This review was also positive, but Zhang was told he was not yet ready to be promoted to first class because he still lacked experience on some types of panels.
At this point, Zhang became extremely angry and agitated. He insisted his production numbers exceeded those of the other wiremen. The supervisor reassured him he would be promoted in due course. However, Zhang could not be mollified, and stormed out of the office.
Two days later, Zhang complained to a coworker that inadequate ventilation was affecting his ability to perform soldering work.
Two days after that, Zhang refused his foreman’s initial request to make an adjustment to some work he was performing. The worker said the job was not on the plans and refused, relenting only after he was issued a direct order. The foreman perceived those actions to be in response to the earlier performance review.
Refused work
Then, on Nov. 19, 2012, the foreman gave Zhang a familiar soldering task to complete. But he refused again, saying he was not qualified to carry out the task. Zhang was reminded he had performed the exact same task many times before.
With his tongue-in-cheek, Zhang continued to refuse and insist he was not qualified, even during an interview with the general manager later that day. Zhang was fired.
The Communications Energy and Paperworkers (CEP) union filed a grievance on Zhang’s behalf, saying he had been fired after refusing work on health and safety grounds. He presented the employer with a list of eight conditions necessary for settling his grievances. While the list included a range of items — including the termination of his supervisor — it made no reference to any health and safety issues.
But the employer said the employee had been aggressive with management and dismissive of coworkers. He had been disruptive, hostile and clearly insubordinate. Thus, termination was warranted, the employer maintained.
However, even if termination was not judged to be the appropriate penalty in the circumstances, reinstatement was not realistic, the employer said. Zhang had demonstrated an unwillingness to follow the decisions and instructions of management. It was not reasonable to expect him to return and be capable of working productively and co-operatively with management and fellow staffers. In the circumstances, compensation in lieu of reinstatement was the appropriate response.
The arbitrator agreed.
In his ruling, Peter Chauvin judged Zhang’s health and safety complaints to be without merit and said the real reason for his refusal to do assigned work was he was upset and unwilling to accept management’s decision he was not ready for the promotion.
Clearly insubordinate
This conduct was clearly insubordinate. Discipline was warranted, but termination was excessive in the circumstances.
Chauvin said compensation in lieu of reinstatement may be considered in cases where the insubordination does not necessarily call for termination, but where the reintegration of the worker back into the workplace seems problematic.
He pointed to a similar case as one example. In Dehavilland Inc. v. National Automobile, Aerospace, Transportation and General Workers Union of Canada, Local 112, the arbitrator provided six factors to consider:
• the refusal of coworkers to work with the grievor
• lack of trust between the grievor and the employer
• the inability or refusal to accept responsibility for any wrongdoing
• the demeanour and attitude of the grievor at the hearing
• animosity on the part of the grievor towards management or coworkers
• the risk of a "poisoned" atmosphere in the workplace.
Chauvin drew a direct parallel between the two cases.
Zhang was hostile and distrustful towards management and the union. He was dismissive of coworkers and disruptive at the arbitration hearing, he explained.
"When one views the grievor’s misconduct in the workplace together with his misconduct at the arbitration hearing, it becomes abundantly clear that it would be very futile and damaging to the workplace to reinstate the grievor."
The arbitrator went on to say Zhang acted in a manner that was unco-operative, intimidating and aggressive.
"It makes no labour relations sense to place the grievor, management or the other employees in that situation," the decision reads. "It would create an unmanageable situation for the employer, a dysfunctional and unhealthy workplace for the employees, and would only set up the grievor for another discharge. I conclude that this is an exceptional case in which it is not appropriate to reinstate the grievor."
Instead, Zhang was awarded two-and-a-half months’ salary and a 15 per cent top-up for benefits in lieu of reinstatement.
Reference: Custom Control Panels Inc. and The Communications, Energy and Paperworkers Union of Canada, Local 546. Peter F. Chauvin — Sole Arbitrator. Rishi Bandhu for the Employer. Melissa Kronick for the Union. July 7, 2013. 19pp.
