Arbitrator denies one grievance, but upholds another one
A millwright working in a plant in Newfoundland and Labrador hurt his shoulder on the job, but when he asked to go home because he couldn’t work anymore, it was denied.
Aaron White then left his job site anyway and went to a doctor, who diagnosed him with an injury and recommended he miss three to seven days of work to heal.
But on Oct. 6, 2015, White was given a termination notice stating “employee left work early without permission” on Sept. 29.
“Following the infraction handed to you on Oct. 2, 2015, and after seriously considering your past personal file, your past conduct and your behaviour, the following disciplinary action has been decided, ‘you are discharged,’” said the letter.
An earlier incident on Dec. 10, 2014, had caused White to receive an infraction notice. Lyle Johnson, his supervisor, assigned a job of servicing a rougher pump that Johnson said White had completed previously at least 20 times.
White was provided with a job pack during the morning safety briefing, that included a list of safety needs, a form that needed to be filled out when the work was done and personal protective issues and overal l safety issues for the specific task.
But on that day, White insisted he needed to perform a job hazard analysis form before he did the work.
When that request was denied, White went to the plant office to file a grievance. He needed to see a copy of the collective agreement, so he could refer to the proper clause.
Johnson ordered White to return to his job site three times that day, as he said neither a job hazard form or standard operating procedure document would be needed to complete the task. Each time, White refused.
The supervisor noted White hadn't completed any work on the pump two hours after the shift had started at 8 a.m.
After the infraction report was issued, White was given a two-day suspension, which was called for in the progressive discipline area of the collective agreement.
The next incident that lead to the termination took place on Sept. 29, 2015.
White hurt his shoulder using a wrench during a shift and immediately went to the on-site first aid clinic. He was examined by registered nurse Guylaine Cyr and given two different types of pills to treat the injury.
After applying ice and installing a bandage, Cyr advised White to return to work and perform only light duty. He was told to avoid any heavy lifting, pulling or pushing of any equipment.
Andrew Cabot, his supervisor at the time, told him to perform light sweeping around the plant.
White later returned to the nurse complaining of further pain and said he couldn’t even do light duty work.
But he was again told not to leave the job site.
Cyr told White that if he left without approval from his supervisor, she would have to report it.
The following day, Cyr received a report from a hospital, which surprised her because White said he was going home.
When maintenance superintendent David Combden heard about this incident, he reviewed White’s discipline history, which included verbal, written warnings and two suspensions.
Following the progressive discipline policy, White was suspended again, then terminated seven days later.
Arbitrator James Oakley issued a split decision. The grievance for the initial two-day suspension was upheld.
“(White) did not have a justification based on safety procedures not to follow the request made by Mr. Johnson on the first two occasions,” said Oakley.
“However, if he was concerned about following the correct procedure, then he would have been expected to have made the request for an (standard operating procedure) or help with a (job hazard anaylsis) earlier that morning when he was assigned the task, and not in response to Mr. Johnson’s third request to go back to his work area," said Oakley.
“The employer had just cause to issue the infraction report and impose discipline for lack of application to the job.”
But on the more important issue, Oakley found the punishment for White leaving the job site was too harsh and he ordered him reinstated, but with a suspension without pay and a final warning.
“The mitigating factors include the fact that the grievor was injured at work and subsequently obtained a medical certificate approving a leave of absence on the day he left work. It is appropriate to modify the penalty and reinstate the grievor,” said Oakley.
Reference: Iron Ore Company of Canada and United Steelworkers, Local 5795. James Oakley — arbitrator. Darren Stratton for the employer. Lawrence McKay for the employee. May 25, 2016.
