Discipline skipped when worker got involved in union organizing drive
A Saskatchewan worker has been reinstated after the Saskatchewan Labour Relations Board found that his dismissal was related to his union organizing efforts more than his disciplinary record.
Grant Goerzen was hired in April 2013 by the City of Warman to be a public works equipment operator. Less than one year later, Goerzen was hauling snow with a dump truck when he drove out of the snow dump with his box raised, pulling down a telephone line. The city gave him a verbal reprimand.
In June 2014, Goerzen received his first performance appraisal from the city. His overall rating was “needs improvement” and he understood it wasn’t a positive evaluation and he needed to shape up.
A short time later, Goerzen took a nine-month parental leave. Shortly after he returned to work in mid-2015, he received another performance evaluation.
Because Goerzen had missed much of the past year due to his leave, his supervisor clarified that it was based on “prior incidents” and the brief time since he had returned from his leave. His performance in different areas was rated as “expectations met” and “needs improvement” and the supervisor provided a list of examples of where his performance was lacking:
• The dump truck and telephone wire incident.
• Leaving the city’s gas monitor in the dry well of a lift station instead of returning it to its storage location.
• Leaving a truck’s lights flashing and door open in an unsupervised shop,
• Failing to park a tractor in a safe manner, causing it to roll into the street,
• Observed by city manager operating a lawn mower in an unsafe manner between trees.
Between August 2015 and May 2016, Goerzen received three incident log sheets after he was injured when he used the wrong blade on a weed trimmer; when he left a city truck on the street for an entire weekend with the keys in the ignition and the window open; and when he injured himself when working on barbed wire. Goerzen wasn’t formerly disciplined for any of these events.
In July 2016, Goerzen received his first written warning for leaving a city truck running with the keys in the ignition before leaving for his lunch break.
Goerzen’s 2016 evaluation was better than his previous ones, but there were still areas needing improvement. Goerzen said he would work on the issues and improve his future reviews.
In October, Goerzen and another city works employee met with an organizer for the Canadian Union of Public Employees (CUPE), as the union was interested in organizing Warman’s workers.
Warman was the largest unorganized municipality in Saskatchewan.
Both Goerzen and the other employee agreed to talk to other City of Warman employees, with Goerzen agreeing to be an inside organizer.
CUPE held a public meeting for Warman employees on Dec. 14. Goerzen attended the meeting and spoke in favour of the union drive, while another employee — who was taking notes — spoke against unionization.
However, that same night, Goerzen was supposed to go to a hockey game with his supervisor and their sons. Goerzen told his supervisor that he couldn’t go because his furnace wasn’t working.
The city’s manager of parks and recreation found out about the union organizing drive and Goerzen’s involvement. He called Goerzen’s supervisor about it and the supervisor informed his superiors.
The public works and utilities manager asked another employee if Goerzen had talked about the drive, but that employee claimed to know nothing about it.
However, a city hall employee told him she had received emails about unionization and the Dec. 14 meeting.
On Dec. 15, 2016, Goerzen’s supervisor assigned him to prepare the city’s shop floor for painting. However, Goerzen claimed another supervisor asked him to go to city hall to see if there was any ice that needed to be removed.
When Goerzen drove to city hall, his supervisor followed him and observed him driving around the city for about 30 minutes without stopping at city hall. The supervisor alerted the other supervisor as well as the public works and utility manager.
When confronted, Goerzen said he was driving around checking the sewage lift stations for ice.
However, his supervisor had observed Goerzen driving down streets where there was no lift station and it was the supervisor’s responsibility that day to check the lift stations.
The city works managers decided Goerzen should be dismissed because of his work ethic and safety concerns.
On Dec. 16, the city terminated Goerzen’s employment.
CUPE responded by filing an unfair labour practice complaint, accusing the city of terminating Goerzen while he was engaged in assisting its unionization efforts for city employees — an activity protected by the Saskatchewan Employment Act (SEA).
CUPE argued that Goerzen’s termination intimidated other city employees from exercising their right to join a union, and management questioned employees about the drive, both of which were also prohibited under the SEA.
The board found that the conversation between the public works and utilities manager and a city employee about the drive wasn’t significant enough to be considered interference. However, the timing of Goerzen’s termination was suspicious, coming shortly after the city learned about the union drive and his involvement.
The city used the Dec. 15 incident as a culminating incident that, along with Goerzen's previous disciplinary record, justified termination.
The board noted that the city’s progressive discipline procedure involved six steps: verbal warning, two written warnings, suspension with pay, suspension without pay, and termination.
Goerzen had only received a verbal warning and a written warning, along with a few incident log sheets. There was no evidence that the culminating incident “was sufficiently egregious that it justified jumping from number 2 (on the progressive discipline process) all the way to number 6,” said the board.
Given that management was aware of the union drive and management was trying to find out the extent of Goerzen’s involvement, the board found it likely that Goerzen’s organizing efforts played a role in the decision to terminate his employment.
The city was ordered to reinstate Goerzen with compensation for lost pay and to stop its unfair labour practices that were contrary to the SEA.
For more information see:
• Warman (City) v. CUPE, 2017 CarswellSask 212 (Sask. Lab. Rel. Bd.).
