Grievor's attitude suggested that unsafe behaviour could not be improved
With three suspensions for safety violations on his record and discipline pending for insubordination, a driver/loader for a waste collection company was terminated after he failed to attend a mandatory safety meeting.
Hired in 2002 as a driver/loader, there were two incidences of discipline on I.N.’s record when he returned from modified duties in January 2009.
I.N. was issued a one-day suspension in October 2008 for a preventable accident and a three-day suspension in November 2008 for exceeding the speed limit. Terms of the collective agreement specified that 12 discipline-free months were necessary to clear a worker’s record.
Multiple Incident Employee
Flagged because of his safety infractions as a Multiple Incident Employee (MIE), I.N. was directed to attend additional, mandatory weekly safety meetings beyond the regular safety briefings. Attendance was taken at the meetings and those listed as absent were called by the supervisor and cautioned that they must either attend a make-up meeting or face discipline.
While I.N. made his January 19, MIE meeting, he missed his regular safety meeting two days later. As of January, attendance at these meetings was also mandatory.
I.N. attended safety meetings on January 28 and on February 4 and 11, but he missed a scheduled February 19 meeting and, significantly, the make-up meeting on February 24.
Between the two missed meetings I.N. was also involved in an incident with a supervisor that led to a suspension for insubordination. Irritated at losing his regular truck while he was on modified duties, I.N. became frustrated by his inability to secure the truck’s return.
At the beginning of his shift on January 29, while awaiting the outcome of his shop steward’s inquiry into the circumstances surrounding the truck assignment, a shouting match erupted between I.N. and a route manager who ordered I.N. to go to work.
I.N. refused and became agitated to the point that the route manager deemed him unfit for driving. I.N. was sent home.
Insubordination
On February 4, a follow-up meeting was convened to address the incident and I.N. was assessed a five-day suspension for insubordination. I.N., the shop steward and the route manager attended the meeting.
On February 20 a route manager assessed the work performance of I.N. and his partner by conducting an Observational Behavioural Analysis (OBA). Following their vehicle, the manager observed a number of safety infractions committed during the shift.
In particular, I.N. was observed to improperly block traffic with his truck while waiting to complete a left turn. He was also observed failing to come to a complete stop at an intersection and was seen to exit the vehicle in a manner deemed unsafe.
Some days later when the supervisor began to review the results of the OBA, it was discovered that I.N. had missed the February 19 safety meeting and the make-up meeting on February 24.
I.N. was fired. A termination letter dated February 25 listed his failure to attend the mandatory safety meeting and his observed safety infractions during the OBA. His prior record of discipline for the year was also enumerated.
The union grieved.
Discipline progressive
The discipline was progressive and appropriate. Termination was warranted, the employer said. All the discipline was related either to safety or to insubordination and it all occurred within a four and-a-half month period. It was clear that I.N. did not get the message and that despite its efforts, the employer had been unable to make I.N. change his unsafe behaviour. There was no basis for believing that I.N. would change his behaviour if he was returned to the workplace, the employer said.
Before the Arbitrator, the union argued that termination was excessive for such minor infractions. In any case, the termination should be set aside because the suspension for insubordination was void.
The union argued that I.N.’s collective agreement rights entitled him to have a steward present to represent him when he was sent home prior to the suspension. That exchange amounted to a meeting that resulted in discipline. Because I.N. had no representation, the suspension was void and so, therefore, was the termination.
The Arbitrator disagreed.
Where testimony concerning the specifics about the altercation differed, the Arbitrator judged the supervisor to be more credible. “[I.N.] was sent home solely for reasons of safety and not in any way as a means of discipline for insubordination. Thus, both the meeting requirement and disciplinary action becoming part of [I.N.’s] file are missing from the circumstances of the grievor being sent home on January 29, 2009.”
Work now, grieve later
In the circumstances, it was I.N.’s duty to work as directed and grieve later. “While [I.N] plainly wanted to resolve his ongoing concern about his truck issue, he had already elicited the help of his union steward, and was required to comply with his supervisor’s direction to go to work and leave his grievance to the procedure set forth in the collective agreement for resolving it.”
I.N.’s termination resulted from his failure to attend a follow-up safety meeting coupled with his safety violations witnessed in the OBA, the Arbitrator said. He missed those meetings knowing that attendance was mandatory and that there would be disciplinary consequences.
The evidence, said the Arbitrator, supported the employer’s argument that it had properly advanced I.N.’s progressive discipline to termination for safety-related rule violations.
The grievance was dismissed.
