Misunderstanding over 'sarcastic' exchange with supervisor
A mid-shift, off-site break to Tim Hortons was deemed enough for a flour packer at the ADM Milling plant in Calgary to be terminated.
Jessy Gobeil was a seven-month employee when on Feb. 19, 2016, she left her position at 4 a.m. She advised colleague Damara Smith, who was working as operator one, that she was leaving for a quick coffee and cigarette break.
As an operator one, it was Gobeil’s understanding that Smith was in charge of the floor’s operations during that shift. When she left the site, however, Gobeil neglected to punch-out her time card, which was the normal procedure for workers who went on a lunch break.
Conor Staples, management shift miller, discovered Gobeil’s position was empty so he called her on the radio. When he couldn’t get a response, he went looking for her.
Eventually, he went to the parking lot and saw Gobeil inside her car. When he asked her if she had left the site, she answered sarcastically, “No,” but she was holding a Tim Hortons coffee cup in her hand, which showed she had obviously been off-site. Gobeil explained that because the packing machine was jammed, she went for coffee.
Gobeil testified she thought they were both joking. Staples testified he often joked with Gobeil because “she has a good sense of humour.”
Later that day, Staples emailed Frank Jantz, acting plant manager, that said: “I then asked her if she had left the plant. She told me over and over she had not. I told her not to lie to me and she finally admitted that she had left, I then asked if she punched out, she told me she had forgot but meant to.”
During testimony, Gobeil said she didn’t realize that Staples was the supervisor on duty, who should have been told about her break.
Chris Mallard, packing superintendent, was Gobeil’s direct supervisor and he testified he phoned her on Feb. 22 and told her she was “suspended pending investigation,” which he said was the usual procedure in such cases.
But Gobeil’s phone records showed no calls were made before a Feb. 24 meeting.
On Feb. 22, Gobeil came into the facility for her shift, but she couldn’t locate her punch card. She found Mallard who advised her Jantz wished to speak with her.
Gobeil was told about her suspension for leaving without permission, which was a serious safety violation considering explosive dust which sometimes built up inside the plant. But she testified: “I only realized I had to punch out, not that I needed permission to leave”
No union steward was present during that meeting.
After the meeting, she advised Pat Rector, union chair, about the meeting and that she was suspended. Rector advised Jeff Ible, union representative, to file a grievance, which he did.
The next day, Feb. 24, Jantz presented Gobeil with a termination letter which read: “Committing unsafe acts and failure to follow ADM Plant rules is a very serious offence and the company has zero tolerance for this kind of behaviour.”
The union, United Food and Commercial Workers Canada Local (UFCW), Local 401, grieved the termination and asked for $20,000 in damages to be paid to the union and $10,000 to be paid to Gobeil. It argued the employer breached the collective agreement when it held a disciplinary meeting without union representation.
Arbitrator Alan Beattie upheld the grievance and ordered a one-day suspension be substituted. He awarded the full damages requested.
The arbitrator pointed out a less-than-stellar investigation as the main cause for the hasty dismissal.
“It seems Jantz essentially decided to invoke section 23 of the rules and automatically treat (Gobeil’s) leaving the plant without permission as grounds for termination without a proper investigation of whether it was just cause for termination,” said Beattie.
Jantz’s written rules about leaving the plant were “poorly drafted, inherently inconsistent and confusing and is certainly not consistent with the understanding of several of the witnesses,” according to Beattie.
Gobeil leaving without informing the proper supervisor was not entirely her fault, said Beattie. “The fact is she did tell someone and was not trying to hide her leaving. Her understanding as to who was ‘in charge’ is a circumstance that should have been investigated by Jantz and Mallard and, based on her understanding, she should have been given the benefit of the doubt.”
“(Gobeil) has been treated very badly by the company despite her willingness to acknowledge her mistake, to recognize that some discipline was warranted, her remorse and contrition,” said Beattie.
Reference: ADM Milling Company and United Food and Commercial Workers Canada Local 401. Alan Beattie — arbitrator. William Armstrong for the employer. Katrina Piechotta, June Ling for the employee. Nov. 24, 2017. 2017 CarswellAlta 2560.
