The grievor was fired, with an incident where he allegedly threatened a superior listed as the culminating event. The arbitrator found that the discipline relied upon was excluded by the sunset clause and reinstated the grievor.
A worker was fired following an alleged incident with his supervisor. The termination letter referenced earlier discipline problems and characterized the altercation as a culminating incident.
K.H. began working as a labourer for a pre-cast concrete manufacturing company in 2002.
K.H. was a reliable worker. However, according to management, K.H. had difficulties dealing with supervisors and some others at the workplace. The collective agreement contained a sunset clause. There was no discipline on K.H.’s record when he was fired on March 4, 2012.
K.H. had a particularly difficult relationship with M.B., the plant manager.
K.H. had alleged discriminatory treatment at the hands of M.B. based on racial animus and because of K.H.’s relationship to a former employee who was fired for hitting M.B. with a shovel. The employer sought to minimize the potential for conflict between K.H. and M.B. Beginning November 2010, K.H. was told to report to the Lead Hand instead of to M.B.
There was conflicting testimony concerning the March 3, 2011 incident that led to K.H. being fired.
Unscheduled overtime
The employer alleged that M.B. came across K.H. working unscheduled overtime after 5 p.m. on March 3. M.B. said that K.H. had told him to “go to hell” when he ordered K.H. to pack it in for the day. M.B. immediately reported the incident to the company vice president who then went to talk to K.H.
The VP testified that K.H. defiantly refused to acknowledge M.B.’s authority and brandished a shovel at the VP. The VP testified that he threatened to call the police and K.H. left.
The VP reported the incident and submitted a draft disciplinary letter to the company president.
The president made the decision to fire K.H. The company’s lawyer drafted a termination letter.
The letter recounted the altercation, calling it a “culminating incident” and situated it within a “stream of complaints” against K.H. The letter also referenced K.H.’s “previous disciplinary history and poor performance.”
The union grieved.
The employer said that K.H. was violent and insubordinate. The employer was obligated under the Occupational Health and Safety Act (OHSA) to protect its employees.
K.H. had irreparably damaged the employment relationship. Termination was appropriate in the circumstances, the employer said.
The union said that the employer had failed to provide any clear evidence that it had cause to discipline K.H. for anything.
K.H.’s story that he had been directed by the Lead Hand to stay after 5 p.m. on March 3 and do some extra cleanup was equally plausible.
No investigation
The union charged that it was the VP who escalated the incident. The employer’s initial response was to be a warning letter, which was not consistent with the level of threat alleged by the VP. There was no meaningful investigation. K.H. was not interviewed before the decision was made to terminate him, the union said.
The union said the company was attempting to use the March 3 incident as a means to end its troubled relationship with K.H.
The employer did not have the evidence to support its version of the March 3 incident, and its references to discipline that should have been expunged by the sunset clause represented a breach of a substantive right under the collective agreement. The union said the termination was void and that K.H. should be reinstated.
The Arbitrator agreed.
The Arbitrator rejected the employer’s claim that the company’s lawyer had inserted elements of K.H.’s record into the termination letter on her own initiative and that K.H.’s previous record did not factor into the company’s decision to terminate him.
Such a scenario was “unlikely,” the Arbitrator said, and it didn’t matter anyway. The president signed a termination letter based on an alleged culminating incident. The president could not later change his mind about the cause for termination.
“The company’s reliance upon past discipline was a violation of the collective agreement and cannot, therefore, be just cause for discipline,” the Arbitrator said.
The company also violated a prior grievance settlement by failing to remove the discipline from K.H.’s file as it had agreed to do and then by relying on that discipline, which was supposed to have been expunged.
K.H. was ordered reinstated.
“In making this decision, I am cognizant of the company’s obligations under the OHSA. However, even if I had determined the merits of the company’s other reasons for discharge, I would not have found that the company met the onus of demonstrating that the grievor had threatened [the VP] with the shovel. There is, therefore, no potential conflict with the company’s obligations under the OHSA in returning the grievor to the workplace.”
Mark Rogers is a writer and editor who specializes in labour relations and occupational health and safety.
