Union representative not present at time of discipline
A forklift driver at a Brampton, Ont., Coca-Cola processing plant was terminated for exposing a knife during a discussion with another worker.
Roal Richards was first hired in 1998, but on Jan. 28, 2015, he approached Stephen McHugh and asked if he had any money with him.
McHugh said Richards was holding a two- to three-inch blade in his hand while the conversation happened, which made him very anxious, even though he later testified he didn’t believe that Richards intended him any harm.
The following day, union steward Robert Fagan brought up the incident to Byron Anderson, the warehouse manager. Anderson then told McHugh to go home as he was concerned about his safety.
Anderson also interviewed two witnesses to the brief conversation.
Afterward, Anderson told Richards to go to the cafeteria and await his return. He went to find a union steward on duty so he could question Richards in his presence, as the collective agreement directed.
But Richards went home at the end of his shift and no further conversation happened that day.
The next day, a woman called into the office and said Richards was feeling depressed and would be staying home.
Anderson called back and advised the woman that Richards should remain at home pending further notice.
During the subsequent investigation, the employer had trouble connecting with a key witness who repeatedly requested a postponement of an interview before finally making himself available on Feb. 18.
On Feb. 19, the company terminated Richards via a letter for “threatening to use a knife to inflict harm on a colleague.”
Unifor Local 973 grieved the action and argued the company waited too long to impose discipline, which violated the collective agreement that mandated 10 working days was the time period for any actions to be taken.
The company countered and said the time limit began only when its investigation was completed.
As well, it requested an extension on Feb. 10 but for some reason the union didn’t respond to the request.
The union also took offence to the discipline that was imposed upon Richards which it said did not happen in the presence of a union representative, also a stipulation in the collective agreement.
But the company argued that by informing Richards to stay at home while the investigation proceeded, it was not a disciplinary suspension, so no representation was required.
“By imposing a suspension on the grievor in this case without affording him the right to union representation the employer did indeed violate (the collective agreement),” said arbitrator Norm Jesin.
“It has long been accepted that where a collective agreement provides an employee with representation rights during the disciplinary process, the failure to grant those rights will render resulting discipline null and void.”
He ordered the company to fully reinstate Richards and to negotiate a reasonable compensation for the time lost to the termination.
“I appreciate that initially the employer attempted to have a steward present when it first sought to meet with the grievor. But when that did not happen, the employer could have called the grievor back for a meeting with a steward or could even have arranged a telephone meeting with a steward and the grievor to inform him of the suspension,” said Jesin.
Reference: Coca Cola Refreshments Canada and Unifor Local 973. Norm Jesin — arbitrator. Craig Lawrence for the employer. Cynthia Watson for the employee. Nov. 2, 2016.
