The grievor was terminated for insubordination and leaving work early. The arbitrator found he had left at his regular quitting time. The insubordination related to refusing work normally assigned to junior employees. The arbitrator found there was no right to refuse this work and allowed disciple short of termination for insubordination.
A worker was fired after two incidents caused the employer to doubt his employability.
The union grieved.
K.S. was a Machine Operator at a container storage and port facility. He had less than four years’ service when he was fired in July 2010. There was no discipline on his record at the time of his termination.
However, the Arbitrator noted that indications were that K.S. was a poor employee who was benefiting greatly from the sunset provisions in the collective agreement, which deemed an employee’s record to be free of any disciplinary notice after one year.
On July 2, 2010, K.S. failed to show up for his scheduled 7:30 a.m. start. K.S. arrived at 8:15 with the explanation that he thought his start time that day was 8:30. Upon his arrival, K.S. and his supervisor had a brief conversation about the implications of his lateness.
There was some discussion about whether or not K.S. should stay beyond the normal 4 p.m. quitting time to make up for being late. K.S.’s foreman was not aware that K.S. was late or that there had been any discussion about K.S. staying late.
The terminal was not busy that afternoon. K.S. left at 4 p.m. after consulting his foreman.
K.S. was suspended and then fired after an incident five days later.
On July 7, K.S. was ordered to stop what he was doing and use the heavy lift to unload some trucks. K.S. demurred and suggested that the junior employee should be directed to take on the task. The foreman insisted. K.S. complied.
Problematic employee
Later the same day, the foreman radioed K.S. Again K.S. was ordered to use the heavy lift to unload more trucks. K.S. again told the foreman to get the junior employee to do it as he continued on with the job he was doing. The foreman asked K.S. if he was refusing the order. K.S. again said that the junior employee should be tasked with unloading the trucks.
K.S. was suspended. Two weeks later he was fired.
The employer alleged cause. K.S. was insubordinate, employer said. On July 2, he left work early and without permission contrary to the arrangement he had made with his supervisor to stay late to make up for being late. On July 7, K.S. refused an order from his foreman. K.S. was a “problematic” employee with less than four years’ service — the termination was warranted, the employer said.
The union disputed that any discipline was warranted. There was no direction on July 2 requiring K.S. to stay late. He left work at the regular time with the knowledge and consent of his foreman. With respect to the incident on July 7, K.S. did not refuse an order, the union said. K.S. was seeking to assert his seniority rights to choose work and equipment according to established practice at the facility.
The employer was wrong about the July 2 incident, the Arbitrator said. Some members of management had the understanding that K.S. had fled the premises early with his foreman in pursuit. There was no evidence for that or even any source for the story who could be identified.
Standard practice at the workplace was to leave at the normal quit time unless it was busy or unless a worker was asked to stay late.
No contractual basis for alleged seniority rights
That didn’t happen in this case. K.S. might have checked in with his supervisor before he left, or informed his foreman about his earlier discussion but he was given no direction to do so.
However, the Arbitrator said that K.S. was insubordinate on July 7 and discipline was warranted.
The Arbitrator accepted that the workplace observed an informal practice whereby workers could assert seniority rights in order to exercise their preference with respect to jobs and equipment. However, there was no contractual basis for K.S.’s July 7 attempt to fob off less desirable work on the junior employee.
“[T]here is no indication this practice has ever been elevated to the point of providing a legitimate defence to what would otherwise be clear insubordination and a refusal to perform required work. The evidence discloses there was a clear order to perform the work in question understood by the grievor, and that it was given to him by someone with authority over him. Further, the order was disobeyed.”
The Arbitrator said that K.S. had tested the bounds of accepted practice and he had overstepped them. Discipline was warranted, but termination was excessive in the circumstances.
The discharge was replaced with a three-day suspension. The employer was ordered to make K.S. whole in terms of lost wages and benefits.
