Retail clerk in B.C. received 2 disciplinary letters, 3-day suspension for insubordination shortly after first collective agreement ratified
A clerk at a retail establishment received two disciplinary letters and a three-day suspension for insubordination soon after the establishment ratified its first collective agreement.
The union grieved the discipline and alleged harassment. B.C. was employed as a clerk at the Comox District Consumers Co-operative. The union and the employer ratified their first collective agreement on Oct. 3, 2012.
There were some growing pains associated with the new collective bargaining relationship that resulted in a number of disputes. B.C. was issued a disciplinary letter on Oct. 24, 2012, for an alleged “major rule violation” after she was observed to open the front door of the establishment and yell across the parking lot to summon another clerk.
The disciplinary letter characterized B.C.’s actions as a “vocal assault of yelling and screaming” and said B.C.’s conduct amounted to insubordination. Three weeks later, B.C. was issued another disciplinary letter — this time for a “minor rule violation” after she used a profanity to describe the derelict state of a regular administrative task that had been overlooked. B.C. said the lottery ticket tally was “fucked up.”
The manager felt the comment was directed at him. On Dec. 1, B.C. was assessed a three-day suspension after a customer complained of rude service. The union grieved the employer’s disciplinary actions against B.C.
It also grieved the employer’s disciplinary action against another employee and then it filed a group grievance against the employer alleging harassment and discrimination.
Not fair
The arbitrator said the employer’s disciplinary process was not fair and did not meet the standard identified in Re Wm. Scott & Company Ltd and Canadian Food and Allied Workers Union, Local P-162.
“The primary requisites of a fair process include the requirement that the employee, for whom a disciplinary sanction is considered, be given the opportunity to present her or his evidence of the event giving rise to a consideration of discipline. Fundamental to that consideration is that a decision regarding the quantum of discipline, if any, occurs subsequent to a full and fair investigation. If a full and fair investigation has not taken place, such flaw is not necessarily fatal to an employer’s case, providing the inhouse grievance procedure accommodates a more complete and equitable review of all the relevant circumstances, including a consideration of a revised quantum of discipline, (e.g. a reassessment based on mitigating and/or aggravating factors) or whether the discipline is appropriate at all as such complete investigation may conclude.”
That did not happen in this case, the arbitrator said. The process that led to B.C.’s discipline was flawed and could not be defended as an outcome derived from reasoned conclusions drawn from a review of all the available evidence.
The arbitrator ordered that B.C.’s discipline be rescinded and replaced with a non-disciplinary letter outlining the employer’s expectations with respect to B.C.’s conduct going forward.
Harassment not proved
The arbitrator said that the union had failed to meet its onus to prove its allegations of harassment against the employer.
“I am unable to conclude with certainty that this is a case of harassment. It may well be a case of the failure of a management style as well as a failure of some bargaining unit employees to fully understand or accept management’s right to manage the Co-op, including the management of its employees.”
The arbitrator concluded that the relationship between the union and management at the Co-op was in need of repair and recommended that the parties acknowledge certain fundamentals, including:
•The employer must clearly and unambiguously set out its expectations of employees with respect to developing a new business culture and do so in a consensual manner where possible using vehicles like labour/management meetings
•Employees must recognize the right of the Employer to implement rules and procedures that may be a change from the workplace culture that existed in the past
•Employees must respect the lawful directions/edicts of the Employer and acknowledge the principle of ‘work now — grieve later’
•The parties should convene a meeting before a grievance is filed to determine whether or not there is a difference and see if that difference can be resolved
•The parties must acknowledge the mandatory requirement in the collective agreement, which requires that after a grievance is filed and before proceeding to arbitration, the parties are obligated to meet in good faith and “earnestly endeavour” to settle the grievance.
Reference: Comox District Consumers Co-Operative and United Food and Commercial Workers International Union, Local 1518. Ronald S. Keras — Sole Arbitrator. Andrea L. Zwack for the Employer. David Tarasoff for the Union. April 2, 2013. 23pp.
