Factory smoker given indefinite blow-off

Worker caught smoking beside machine in factory

This instalment of You Make the Call features a long-term employee who was fired for smoking in the workplace.

Tom Purvis was a factory worker for Flowserve Canada, a manufacturer of pumps and valves in Brantford, Ont. Purvis was employed with Flowserve for 29 years, during which he accumulated a disciplinary record for poor attendance and work performance issues. At one point, he received a final warning that was reduced to a written reprimand and his most recent discipline was a letter on Jan. 8, 2008, warning him not to provoke an incident with a co-worker with whom the company believed he had an altercation several months earlier.

On Jan. 4, 2008, a supervisor caught Purvis smoking in the factory beside his machine. Flowserve had a strict smoking policy that prohibited smoking inside the building for health and safety reasons. Purvis said he was under stress from being blamed for mistakes he felt weren’t his fault and he had lit a cigarette without thinking.

Purvis was called into a meeting with management on Jan. 11 and was told he was being suspended indefinitely for violating the company’s smoking policy. After five weeks off, he asked Flowserve for a Record of Employment (ROE) so he could get employment insurance benefits. Flowserve sent him an ROE that indicated he was on “indefinite layoff.”

Flowserve didn’t send any written notice of its reasons for relieving Purvis of duty nor any specification on whether he was still suspended or was terminated. Flowserve informed the union Purvis was on indefinite suspension for smoking next to his machine but also said “termination was warranted.” Flowserve also said because Purvis was on a union committee, he set an example for other employees and should be held to a higher standard. The company pointed out he had been reprimanded for smoking in the workplace in 2004 and was well aware of the company’s policy.

The union contested the dismissal, saying Purvis accepted responsibility for his conduct and a suspension should have been enough. It said Flowserve was unclear on what the discipline was and Purvis had never been informed he was terminated, which was contrary to the collective agreement’s stipulation that dismissed employees must be notified in writing.

You Make the Call

Should Purvis have been dismissed?
Should he have been suspended?

If you said suspension was the proper discipline in this case, you’re right. The board said Flowserve handled the situation in a timely manner and proceeded with the discipline properly to the point where Purvis was told he was suspended. Given everything was made clear, the board said Flowserve’s failure to provide Purvis with written notice was “procedural” and not a factor in deciding the level of discipline.

The board agreed there was just cause for discipline, as the act of smoking in the factory was “a deliberate violation of an important health and safety rule,” of which Purvis was aware and he had been disciplined for smoking previously. However, because the collective agreement didn’t allow for the concept of indefinite suspensions, the board found Flowserve effectively terminated Purvis at the meeting on Jan. 11, 2008.

However, the board considered Purvis’ 29 years of service and chances of finding a similar job, as well as his position in the union and the fact he had only one previous smoking infraction four years previously. It deemed dismissal as too harsh and ordered Flowserve to reinstate Purvis with a four-month unpaid suspension. The suspension was significant enough, the board said, to convey the seriousness of his misconduct.

For more information see:

Flowserve Canada Corp Brantford Operation v. I.A.M. & A.W., Local 1673, 2009 CarswellOnt 1602 (Ont. Arb. Bd.).

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