An equipment operator employed since 1996 in a city’s waste collection and recycling section, J.O. was terminated for cause following a number of incidents that highlighted a mismatch between the management style of his supervisors and unusual aspects of J.O.’s personality makeup that also brought him into conflict with coworkers.
According to a psychological assessment that he undertook as a precondition to returning to work following a suspension, J.O. did not suffer from any personality disorder. However, he did have difficulty “fitting in.”
The psychologist said that J.O. could be awkward in social situations, found it difficult to assert himself and was inclined to avoid conflict. Though a conscientious and tolerant worker, J.O. was unable to communicate concerns directly to supervisors and coworkers and was likely to withdraw or act out when reprimanded or disciplined.
These quirks contributed to misunderstandings that escalated into conflicts and stunts on a number of occasions.
Flipped out
For example, once when a coworker selected a garbage truck that was not favoured by J.O., he “flipped out” and then spontaneously took the day off. However, later the same day while off work, J.O. drove up to the co-worker while he was on duty and shouted at him.
On another occasion, while he was working the back of the truck, loading garbage and directing the driver, J.O. apparently chose to express his displeasure over the driver’s failure to properly follow his signals by flinging himself to the ground behind the truck, causing the driver to believe that he had run J.O. over. Suspended two days for this prank, J.O. nevertheless reprised it one year later, allegedly to show his displeasure with another coworker.
He was disciplined for the unauthorized and improper use of a bulldozer at the city landfill. There was also an incident involving $2,845 damage to a lamp post, where he left the scene and then improperly filled out an incident report. And, a number of unauthorized absences followed while he pursued harassment complaints against coworkers.
However, the incidents that lead to his termination occurred after his return to work following the psychological assessment.
First, as a result of J.O. and a coworker being interviewed separately by a supervisor following allegations by the operator of a recycling truck that J.O. and his coworker had cut the recycling truck off, J.O. became convinced that his coworker had somehow ratted him out. Despite the coworker’s denials, the relationship degenerated after that. The coworker alleged that J.O. badgered and harassed him to the point where he staged a work refusal under the Occupational Health and Safety Act stating that J.O.’s unsafe work practices were jeopardizing his health and safety.
Gave them the finger
Second, while on suspension as a result of the above incident, J.O.’s supervisor’s alleged that J.O. intercepted them in traffic in his own vehicle and drove beside them while “giving them the finger.”
In addition to citing these two events, the Employer’s termination letter also alleged a “history of practical jokes, pranks, harassing and intimidating type behaviour, unsafe work practices, persistent misconduct, and dishonesty.”
The union grieved, arguing that the employer had meted out penalties that were too severe for the various infractions, that it had mishandled J.O.’s return to work, failing to take into account the recommendations of the psychologist, which included setting up an alternate reporting structure for J.O.
The Arbitrator disagreed. The employer was under no legal obligation to follow the psychologist’s recommendations. And, in any event, it was the Arbitrator’s view that even if the employer had adopted the psychologist’s recommendations, events would have unfolded as they did.
The Arbitrator said that J.O.’s mistreatment and harassment of his coworker “was deserving of a serious disciplinary response.” That action in combination with J.O.’s other incidences of misconduct amounted to sufficient cause for the employer to terminate him. The final question was whether or not there were sufficient mitigating factors to justify a lesser penalty.
While his years of service were not inconsiderable, J.O.’s unwillingness to acknowledge that he had acted inappropriately left the Arbitrator without sufficient confidence to believe that J.O. would not engage in similar behaviour if reinstated. The termination was upheld.
