Employee ought to have known better, arbitrator says
Andrew Allen, a pump attendant at a gas station in Saskatoon, was fired after setting off a cherry bomb a little too close to the propane tanks.
Allen was fired as the company, Saskatoon Co-operative (which runs the Greystone Gas Bar where the grievor worked), viewed his actions as very serious misconduct. The firecracker was characterized as a small explosive device that was extremely dangerous, with the potential to ignite the gas and propane and cause significant damage or harm.
However, the firecracker was the only thing that exploded, and following an investigation and termination, Allen filed a wrongful termination grievance alongside the local chapter of the United Food and Commercial Workers (UFCW) union.
While the UFCW did not deny the grievor’s actions were wrong, it said termination was excessive and it argued Allen should be reinstated with a discipline penalty.
Though the firecracker was hazardous and a poor decision, it should not have been considered "extremely dangerous" — and the onus was on the employer to prove it was, which the union said it had not provided such adequate proof.
Further, the employee was off-duty at the time of the incident.
According to the employer, the grievor had a history of bad behaviour. He had been repeatedly late for work and on one occasion, walked off his shift early without permission.
As a result he was suspended for two weeks and shortly following his return, he was given a poor performance evaluation rating.
Arbitrator sides with employer
The arbitrator dismissed the grievance, even though William Hood said Saskatoon Co-operative had exaggerated the seriousness of the incident.
"We accept there was a potential for damage to person and property," the decision reads.
"It will come as no surprise to anyone that a gas bar is not an appropriate location to ignite a firecracker. The potential extent and possibility of such damage is merely conjecture in this case."
However, the grievor had been trained in the handling of flammable and explosive materials — he either knew or ought to have known his behaviour was reckless, Hood said.
"Why would anyone, let alone an employee, think it is safe or the right thing to do to set off a firecracker at a gas bar?" he added.
Though it wasn’t as serious as it could have been, the incident was still a hazardous one, and given Allen’s past record, the grievance was dismissed.
Reference: Saskatoon Co-operative Association and the United Food and Commercial Workers Local 1400. William Hood — arbitrator. Rebecca Macaulay for the employer, Jim Bitinsky for the union. Aug. 10, 2015.
