The grievor approved work done by a contractor that had been completed improperly. The city claimed that the grievor's failure to apply a new set of rules was a challange to authority. The arbitrator ruled that the situation could not be characterized as insubordination.
A public works inspector was disciplined after his failure to follow up on a superior’s verbal instructions resulted in work being carried out improperly. The employer alleged insubordination. The union grieved.
M.G. began working as a Construction Inspector in the public works department of a municipality in 2004. He had a clear disciplinary record.
The duties of the Construction Inspector included inspecting and evaluating existing municipal infrastructure and work conducted by and for the municipality. Under the direction of the Manager of Contracts, the Inspector was also expected to ensure that work done by contractors for the municipality was carried out according to required specifications.
In the course of a residential municipal sewer rehabilitation project, concerns arose about where to locate the new “clean-outs” — the vertical pipes that connect the sewage lines from individual houses to the main municipal sewer line at the street.
The issue was of particular concern because an earlier “conflict” with an existing gas line on the west side of the sidewalk had resulted in a gas line strike. A worker died in the accident.
In the wake of that accident, the procedure was to install the new clean-outs on the east side of the side walk in cases where the old clean-out was found to be within one metre of the gas line.
However, that directive was changed after another close call: all the new clean-outs were to be installed on the east side of the sidewalk.
Verbal order
The Manager of Contracts issued the new order verbally at an onsite meeting on May 5, 2011.
Along with M.G. and the Manager, two representatives from the contractor performing the work were present along with another engineer from the municipality.
M.G.’s diary for the day noted who was at the meeting and the new order.
On May 11, the Manager returned to the site and discovered that clean-outs had been placed on the west side of the sidewalk contrary to his order.
The employer said M.G.’s failure amounted to insubordination. M.G. was suspended for one day.
The discipline was justified, the employer said. M.G. had been given clear instructions. He failed to follow the instructions despite knowing the critical context associated with the placement of the clean-outs.
The evidence showed M.G. soon became aware the contractor was placing the clean-outs in the wrong locations. At that point, M.G. should have informed his supervisor of the contractor’s non-compliance, yet he failed to act.
Failure to follow a clear order is generally considered to be insubordination, the employer said.
M.G. had made a mistake, but he was not insubordinate, the union said.
The new order respecting where to install the new clean-outs was given directly to the contractor. M.G. may have been guilty of an isolated failure to communicate the contractor’s lack of compliance to the Manager but that was not the same as disobeying a direct order, the union said.
Also, the Manager should be required to bear some of the responsibility for the mistake because of his failure to put the new order into writing, the union said.
The Arbitrator disagreed. M.G.’s diary made it clear that he was in no doubt about where the clean-outs were to be installed.
Insubordination a rebuke of management’s authority
However, the key question was whether or not any particular intent could be inferred from M.G.’s actions, or inactions.
The Arbitrator cited Highland Valley Copper: “Insubordination can take many forms, all of which involve a rebuke of management’s authority to direct the workplace. Insubordination can cover many types of behaviour. It can be an overt refusal to follow a lawful direction, it may be an insult or rude remark (sometimes as a result of a flare-up of temper), or it may be a less obtrusive behaviour, but with an intent to undermine and challenge management’s authority.”
M.G.’s behaviour didn’t fit that description, the Arbitrator said. “After considering all of the circumstances of this case, I am unable to isolate any intent on the part of the grievor to undermine or challenge management’s authority. Instead, I accept the submission of counsel for the Union that what occurred here is more aptly described as an instance of deficient work performance.”
By alleging insubordination, the employer had mischaracterized M.G.’s behaviour, the Arbitrator said.
Nevertheless some discipline was warranted for M.G.’s poor performance, the Arbitrator said. A written warning was substituted for the suspension.
