The grievor was working under a "last chance agreement." He walked out of a meeting where a safety violation was being discussed. He was then terminated, using the meeting and the events leading up to it as a culminating incident.
Following a long suspension for workplace violence, a crane operator was fired for unsafe acts, insubordination and dishonesty soon after he was returned to work under the terms of a conditional reinstatement.
The union grieved, arguing there was insufficient cause and the employer was “out to get” the worker for raising health and safety concerns.
A.F. began working as a crane operator at a rail car manufacturing plant in 2002. He was terminated in 2010 after threatening a coworker. However, he was reinstated and A.F. returned to work on Dec. 2, 2011 after a 128-day suspension.
On Dec. 6, 2011, A.F. alerted his supervisor he felt he was being harassed by a coworker. The worker allegedly told A.F. to watch out because the company was building a case against him.
A.F., the union steward, the supervisor, and the supervisor of the coworker met shortly afterwards.
Despite assurances that the matter would be investigated, A.F. was dissatisfied and walked out of the meeting. The supervisor considered A.F.’s action to be insubordinate.
Later during the same shift, the supervisor observed the “spreader bar” above a load that A.F. was lifting was uneven.
Unstable load
Spreader bars are used during a lift to separate the chains that attach a load box to a crane’s hook. The spreader bar stabilizes the load being lifted. Crane operators are trained extensively in the proper placement and use of spreader bars.
The supervisor examined the load and observed the spreader bar was three inches above the load on one side and nine inches from the load on the opposite side. He told A.F. that the spreader bar must be level. A.F. contradicted the supervisor. He said the spreader was not that far off level.
The supervisor reported both incidents.
A.F. was called into a meeting the next day and asked to explain why he was lifting a load with an uneven spreader bar in violation of Plant Rule 14.
At first, A.F. denied he had set the spreader bar improperly. He also denied his supervisor had ever talked to him about the spreader bar. However, A.F. demurred when asked directly if he was calling his supervisor a liar.
A.F. alleged the supervisor was taking issue with him because he had raised safety concerns in the past to do with lifts made using unrated material boxes. On a couple of occasions, the supervisor had performed lifts using an unrated material box after A.F. had expressed reluctance.
A.F. also denied the charge he had walked out of the meeting before it was over.
Culminating incidents
A.F. was suspended indefinitely for violation of Plant Rule 14 and for insubordination. On Dec. 22, A.F. was fired.
The employer said the termination was warranted as a result of culminating incidents and his failure to live up to the terms of his conditional reinstatement.
A.F.’s abrupt exit from the meeting was insubordinate.
He also violated plant rules.
The improper lift using an uneven spreader bar was an unsafe act and an inexplicable violation of plant rules. A.F. knew better. He had been trained extensively over his career and had only recently received a refresher course upon his reinstatement.
He compounded the misconduct with his denials and dishonest account of the incident.
The union said little weight should be attached to A.F.’s previous disciplinary record in this case. There were no allegations of violent behaviour in this case to link to his previous disciplinary record or to the terms of his conditional reinstatement.
The employer’s response to the spreader bar incident was out of proportion to the offence, the union said, and was being used as a pretext in order to get back at A.F. because he had raised health and safety concerns in the past. A.F.’s termination amounted a reprisal and was a violation of section 50(1) of the Occupational Health and Safety Act (OHSA).
The Arbitrator disagreed.
Insubordination
The terms of A.F.’s conditional reinstatement obliged him to maintain good behaviour. A.F. should have been aware that acts of misconduct would subject him to potential termination, the Arbitrator said.
A.F.’s improper use of the spreader bar, his dishonesty and insubordination were all serious culminating incidents.
Because he did not testify, A.F. was unable to advocate for his version of events or shed light on his seemingly inexplicable behaviour in the circumstances.
The Arbitrator said it was reasonable to draw an adverse inference from A.F.’s failure to testify.
“[A.F.] has not done anything to cause me to believe that he accepts that he did anything wrong in connection with his use of the spreader bar, his dishonest statements [to his supervisor], or his insubordination in walking out of the meeting…”
Consequently, there was no reason to believe he would refrain from such conduct in the future, the Arbitrator said.
There was insufficient evidence to support the union’s charge that the termination was tainted by anti health and safety animus, the Arbitrator said.
There were ongoing discussions involving the plant’s joint occupational health and safety committee and the Ministry of Labour concerning lifts using unrated material boxes. However, pending a final resolution of the issue, a temporary solution evolved whereby managers would perform such lifts in the event that workers were unwilling.
There was no record A.F. had staged a work refusal under the OHSA. Nor was there any reason why the employer would single out A.F. for such a reprisal when the plant had worked out an everyday solution.
The grievance was dismissed.
