Welder’s employment relationship breaks loose

Failed to follow instructions; felt his way was better

This instalment of You Make the Call involves a welder who disagreed with the instructions he received from a supervisor.

Edmar Rosario, 45, was a journeyman welder for SMS Equipment, a supplier of forestry, mining and construction equipment in Fort McMurray, Alta. Hired in 2008, Rosario received a written warning two years later for not complying with company safety standards, as well as two verbal warnings for safety issues, and a written warning in January 2011 for failing to follow notification procedure for an absence. Rosario was also suspended for three days twice, once for not working when he should have been and once for starting up equipment with the locks on. The last suspension came with a warning that further misconduct would lead to dismissal.

A couple of weeks after the last suspension, on June 29, 2011, two supervisors examined Rosario’s welding as he was working on a piece of a dump truck. They noticed he was doing it incorrectly, and explained the correct procedure.

The next day, they checked Rosario’s weld and found Rosario had done the job the opposite of how they had instructed him to do it. When Rosario arrived for his shift, they asked him about it and he replied that their instructions had been wrong and he was confident his way was the right way to do it.

The supervisors asked Rosario to write a statement, but Rosario asked for a shop steward. He was told a steward wasn’t necessary and he could return to work without writing the statement, but face consequences. Other workers removed Rosario’s weld and did it according to SMS procedure.

Later that day, Rosario asked one of the supervisors why he was being harassed, and said that when he got his days off he was going to fly to Japan — where SMS’s head office was — and “shake this place up.” The supervisor thought Rosario’s tone of voice wasn’t normal and felt threatened, so he sent Rosario home. He then reported the incident to his foreman.

Rosario met with HR representatives on July 1 and they explained to him that when a supervisor explains a way to do something, he was required to do it that way, as long as it was safe. Rosario acknowledged he had been directed to do the weld a certain way, but he had chosen not to.

After some consideration of his disciplinary record and lack of regret, SMS felt it couldn’t trust Rosario to follow directions, which was critical for quality control and safety in a workplace where supervisors are often not around. Rosario’s employment was terminated.

Rosario argued he had a lot of experience and SMS didn’t give him a chance to explain why he didn’t follow the instructions. He said he was confident he did the weld properly and he didn’t write a statement without a shop steward present because he understood he was being disciplined — doing so without a steward present was contrary to the collective agreement. He also claimed his comment about shaking the place up referred to his intention to write letters to higher-ups and find someone who would listen to him.

Was dismissal an appropriate level of discipline?

OR

Was dismissal too harsh?

If you said dismissal was appropriate, you’re right. The arbitrator found there was no evidence the instructions Rosario received were unsafe. Rather, Rosario simply claimed his way of doing it was better, which he made clear to the supervisors.

“At no point has (Rosario) accepted that his supervisors have the right to direct how he does his work. This constitutes insubordination,” said the arbitrator.

The arbitrator noted Rosario’s previous instances of discipline related to his failure to follow proper procedures, including the recent suspension where he had a final warning. SMS had followed proper progressive discipline and Rosario failed to change his behaviour, said the arbitrator.

Rosario’s dismissal was upheld and his grievance was dismissed. See SMS Equipment Inc. v. C.E.P., Local 707, 2012 CarswellAlta 1104 (Alta. Arb. Bd.).

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