A service industry worker was suspended for bad-mouthing his employer in front of clients. The union grieved and the penalty was reduced to a three-day suspension.
A service industry worker was suspended for bad-mouthing his employer in front of clients.
M.V. was employed at a large convention centre operated by a provincial Crown agency. M.V. had 12 years’ service and a discipline-free record when he was suspended on July 6, 2011.
In September 2010, the employer contracted out the day-to-day operations and management of the convention centre to a large facilities management and food services company.
Under the terms of a Letter of Agreement signed by the employer, the contractor and the union, the contractor was acknowledged as an agent of the employer. It was also agreed that convention centre workers — who were Crown employees covered under the Crown Employees Collective Bargaining Act — would continue to be covered by the terms of the existing collective agreement.
M.V. was a vocal opponent of the new arrangement.
On April 18, 2011, M.V. appeared on camera in a televised broadcast news story that reported claims of employee dissatisfaction with the new operator of the centre. M.V. alleged on camera that the operator was outsourcing work at lower wages to non-bargaining unit members.
On June 29, 2011, M.V. e-mailed the convention centre’s Vice-President of Client Services to express some of his concerns. M.V. bemoaned what he perceived to be declining standards of service at the facility. He also alleged that the operator was violating the collective agreement.
Criticized management
On July 6, 2011, the centre’s management received an e-mail from an exhibitor at an event held at the centre one month earlier. The exhibitor alerted management that a Banquets person at the centre (later identified as M.V.) criticized both management and the union and made numerous comments about how poorly the centre was being run.
Similar concerns about comments attributed to M.V. were raised in another e-mail to management dating from a series of convocation events that were held at the centre in June 2011.
The employer also alleged that M.V. was seen engaging in “heated conversations” about labour relations with other bargaining unit members during an event that was held in July. The employer said that the conversations were held in public areas at the facility where they could be overheard by patrons.
On July 6, 2011, M.V. was assessed a five-day suspension. The union grieved.
The employer argued that M.V.’s criticisms of management and how the employer conducted its business, which were made during working hours and were directed at — or were accessible to — the employer’s clients, constituted a clear breach of M.V.’s duty of fidelity to the employer.
The union said that no discipline was warranted or, alternatively, that the discipline was excessive in the circumstances. The employer failed to follow the established steps of progressive discipline and imposed a comparatively harsh suspension out of the blue. There were no complaints about M.V.’s work and he was a 12-year employee with a discipline-free record. It was noteworthy too, the union said, that no other employees were disciplined even though there were others who participated in the discussions at the various events cited by the employer.
Discipline was warranted, the Arbitrator said.
“It is simply not appropriate for [M.V.] to be taking opportunities to voice negative comments about his employer, or its agent, to or in the earshot of its customers. This, of course, is particularly so where the grievor, an experienced employee in the hospitality industry is, whether or not he is comfortable with the role, part of the public face of his employer while he is at work.”
Extensive workplace agenda
An argument could be made for some latitude for either a trade union representative or a private citizen to exercise his or her rights to free speech in such circumstances, the Arbitrator said, but in this case M.V. was acting in neither capacity.
“The employer has a legitimate business interest in ensuring that its employees do not malign management in conversations with or within earshot of clients while those employees are at work. Neither should clients be subjected to employees on the job who are engaging in debates about internal trade union politics or matters of collective agreement enforcement.”
It was clear that M.V. had an “extensive workplace and labour relations agenda,” the Arbitrator said. M.V. was entitled to his views and entitled to seek office in the trade union and engage in politicking up to a point.
“That freedom, however, is not absolute and does not provide him with a licence to freely express his views at work to, or within the earshot of, the employer’s customers or guests.”
However, the Arbitrator agreed with the union that it was appropriate to reduce the penalty.
It was true that the employer failed to use progressive discipline in this case and therefore failed to afford M.V. an opportunity to modify his behaviour. The Arbitrator also said that the union’s claims of differential discipline had merit: other employees also voiced complaints — but only M.V. was disciplined.
The penalty was reduced to a three-day suspension.
Reference: The Crown in Right of Ontario (Ottawa Convention Centre) and United Steelworkers. Bram Herlich — Sole Arbitrator. David Lipton for the Union. Brett Christen for the Employer. July 13, 2012. 11 pp.
