Nova Scotia worker ignores envelope containing warning letters, breaches last-chance agreement

A Nova Scotia worker’s refusal to take an envelope containing warning letters was insubordinate misconduct that breached his last-chance agreement, an arbitrator has ruled.

Alton Donnelly was a crane operator for Irving Equipment, a crane and heavy equipment rental company based in Saint John, N.B. On Nov. 29, 2018, Irving terminated Donnelly’s employment for behaviour that the company considered “grossly unsafe and inappropriate.” The union reached a settlement that substituted a six-month suspension for the dismissal with a last-chance agreement.

During the two-year period of the last-chance agreement — ending May 29, 2021 — Irving could terminate Donnelly’s employment for “any disciplinable misconduct.”

On May 6, 2020, Donnelly forgot to fill out a field level risk assessment before a job — one of the expectations he had been given. Irving gave him a warning and said that termination had been considered but since he had filled out an assessment for another job earlier, he had another chance.

In early 2021, Irving started enforcing a policy of recording hazards identified and corrected during each employee’s shift. Employees were informed that they were expected to submit at least one form per week. Donnelly was told at a toolbox meeting that if anyone went longer than two weeks without submitting a form, there would be discipline.

On Feb. 9, Donnelly was working on a pier at the Halifax Dockyards. Irving’s account manager arrived and found that the crew was at lunch. However, the crane’s upper engine was left running, contrary to standard procedure.

A week later, Irving wrote two warning letters for Donnelly — one about failing to provide hazard ID forms for two consecutive weeks and one about the crane’s engine left running. The Halifax operations manager put the letters in an envelope with Donnelly’s name on it and drove to the dockyard, where he asked Donnelly to come back to the office with him in his truck.

On the way, the manager told Donnelly to take the rest of the day off. The envelope was on the centre console and slid into Donnelly’s lap but he put it back. When he exited the truck, he left the envelope.

The next day, Donnelly had a meeting with management. They informed him that he was terminated because he had left the crane running on the pier, he didn’t complete hazard ID forms and he didn’t acknowledge his conversation with the operations manager by taking the envelope — which it considered insubordination.

The union grieved, arguing that no reasonable employer would have disciplined an employee for leaving the crane engine running and Donnelly didn’t know the envelope in the truck was for him because the manager didn’t tell him.

The arbitrator found that the last-chance agreement was “clearly worded and clear in its intent” to trigger termination for any conduct that would normally justify any discipline. There was no language limiting the scope of the misconduct that could lead to dismissal.

The arbitrator also found that the evidence indicated that Donnelly was aware that there was an envelope in the truck and that it was for him. In addition, Donnelly had to have realized that Irving was concerned with his conduct — his supervisor came to the worksite to take him to the office, he was told to take rest of the day off with a meeting the next day, and there was an envelope with his name on it. However, Donnelly resisted acknowledging the situation.

The arbitrator found that Donnelly didn’t need a direct order to pick up the envelope as he knew it was for him. His refusal to take it with him was a refusal to obey instructions from his employer, which was insubordination, said the arbitrator, adding that insubordination was disciplinable conduct that met the criteria for termination under the last-chance agreement.