What would you do?

You make the reinstatement decision. Does your ruling match the arbitrator’s decision?

Terminating a unionized worker for cause can sometimes seem like more of an art than a science. The terms in a collective agreement mean similar situations could end up with completely different results, but there are some basic ground rules to follow.

How would you handle each of the following situations? Have a read of the facts of each case and consider whether you think the company had cause to terminate the employment relationship. Then find out how the arbitrator ruled.

Long-term worker just doesn’t change

The worker was a spinning technician with 25 years on the job. He was not an exemplary employee, and since 1995 had accumulated several written warnings and a number of two- and three-day suspensions for things like poor work quality, not following safety procedures and sleeping on the job. An August 2002 suspension was a “final warning” for the worker to change his behaviour.

In the summer of 2003, the company instituted a number of new safety policies. Employees were required to keep their sleeves rolled down, to wear gloves more regularly and to wear safety glasses in all areas of the plant.

In November 2003 the worker had to be told on four different occasions to roll down his sleeves. He also had to be directed, on five separate occasions, to wear gloves. Not only did he fail to comply, or belatedly comply, with the new safety rules, but he also behaved in a manner indicating he did not take the rules seriously and did not think it was necessary for him to do what he had been told to do. When a supervisor spoke with him about it, the worker interrupted him several times by saying “no speaka da English” and then took the gloves and tossed them on top of a cabinet.

This resulted in another “final warning” that made it clear termination was on the table. The company even called a “rather unusual” meeting with the worker, the union and senior management to stress how serious the company was about these incidents and that any further problems would result in termination. There were two minor incidents in March 2004, for which letters of discipline were issued, and the company again reminded him of his precarious position.

On May 13, 2004, the worker was spotted sitting at a desk reading a newspaper without his safety glasses on. The area he was in was one in which safety glasses were mandatory at all times. He was told to put the glasses on, and did so. But less than 20 minutes later, another foreman came by and noticed he was no longer wearing the glasses. The company fired the worker for cause. In its opinion, this was the straw that broke the camel’s back.

The arbitrator’s decision: The arbitrator upheld the termination. It said the company correctly followed a progressive discipline scheme.

“When an employee engages in misconduct — even of a relatively minor nature — the employer is entitled to look at the worker’s entire record when deciding what the disciplinary response should be,” the arbitrator said. The culminating incident — in this case not wearing safety glasses — did not need to be extremely serious in itself because of the cumulative effect of his prior record. The arbitrator was careful to note that arbitrators should be reluctant to uphold terminations involving long-time employees for a string of relatively not-so-serious events unless the employment relationship is “clearly fractured.”

If there’s a decent chance the employee’s performance will improve with a penalty other than discharge, then it is appropriate to order reinstatement for a long-serving employee. But in this case, the arbitrator was unable to conclude the worker had a genuine appreciation of his situation or a genuine commitment to change and therefore reinstatement would be pointless.

See Kingston Independent Nylon Workers Union v. Invista Canada, 2004 CarswellOnt 5469 (Ont. Arb. Bd.).

Drug-selling taxi driver

The worker was a taxi driver still on probation. It came to the employer’s attention he might be selling drugs from his taxi cab. A fellow driver told management that two cab fares he picked up were asking about the worker’s location because they wanted to score some pills. A customer also contacted dispatch and allegedly asked for this driver so they could buy drugs from him.

At the time, the taxi company was in the midst of a contentious unionization drive and this driver was advocating unionization. The company fired the worker for cause.

The arbitrator’s decision: The arbitrator reinstated the driver on an interim basis. This case raised an important issue in industrial relations because the worker was allegedly heavily involved in a unionization drive. Labour legislation across the country prohibits an employer from disciplining a worker for union activity and arbitrators take a very dim view of it. In this case the arbitrator ordered the company to reinstate the worker pending a hearing and final determination. The arbitrator thought the timing of the dismissal was suspicious and questioned whether or not the worker would have been fired if he had not been involved in a union-organizing drive.

See U.F.C.W., Local 1400 v. D & G Taxi Ltd., 2004 CarswellSask 930, [2005] L.V.I. 3541-5 (Sask. L.R.B.).

Profanity directed at the boss

A railway worker who had been on the job more than 25 years cursed at his supervisor during a heated exchange on May 28, 2004. He told her to get her “fucking facts straight” and at the end of the conversation told her to “fuck off.” He was sent home and later fired. At the time the worker was also grieving a seven-day suspension handed down a year earlier for submitting improper time claims.

The arbitrator’s decision: The worker was reinstated. But the arbitrator did not take the profanity lightly.

“Although often heard on a shop floor, words like ‘fuck off’ when directed at a supervisor demonstrate a serious affront to authority and warrant a serious disciplinary response,” the arbitrator said. But discharge was simply too serious. The union argued the seven-day suspension from the previous year should not be taken into account, because more than 12 months had passed and it should be removed from his record per the terms of the collective agreement. But the arbitrator said it didn’t matter. Even if it considered the previous discipline, termination was too harsh. The worker was reinstated, without compensation but with full seniority. The court said the lack of compensation for the time off (he was fired June 25, 2004, and ordered reinstated on Feb. 14, 2005) was enough of a suspension to drive home the fact that profane and antagonistic language directed at a supervisor will not be tolerated in the workplace.

See Canadian National Railway v. U.T.U., 2005 CarswellNat 1657, [2005] L.V.I. 3559-2 (Can. Arb. Bd.).

Guard leaves gun in a washroom

A security guard with 24 years’ experience and described as an exemplary employee accidentally left his gun in a washroom at a restaurant. He noticed it was missing about an hour later, and called the restaurant and a security subcontractor in an attempt to find it. It could not be located. He then contacted the police and his supervisor, reporting the lost gun. It was never found. The worker was subsequently fired.

The arbitrator’s decision: The arbitrator reinstated the worker. The employer argued that maintaining control and possession of a weapon is a fundamental requirement of the job. The loss of a weapon was simply too major a transgression. The arbitrator agreed it was a very serious incident.

“Failure to maintain control of one’s weapon by a person authorized to carry a dangerous weapon can have serious consequences for the employer and for society at large,” the arbitrator said. Substantial discipline was warranted, but dismissal was too extreme given the worker’s track record. It substituted a one-month unpaid suspension and ordered the employer to compensate him for lost wages.

See Securicor Canada Ltd. v. General Teamsters Union, Local 362, 2005 CarswellNat 1660, [2005] L.V.I. 3559-8 (Can. Arb. Bd.).

Threatening voice-mail message

A worker who had been on the job about five years left a threatening message on the company’s answering system for the manager of human resources, who was also managing the plant during another manager’s illness.

The message went beyond “shop talk” and contained language that could be construed as a threat against the manager and his teenaged son. The worker was fired.

The arbitrator’s decision: The worker was reinstated, without compensation for lost wages and without a loss in seniority. There were some mitigating factors in this case that tipped it in favour of reinstatement. The worker publicly apologized to the manager and said he was totally embarrassed by the message. He also agreed to use the company’s employee assistance plan (EAP) to help manage his anger.

It became clear during the arbitration hearing that the worker didn’t even know the manager had a son, and that when he said “your boy” in the message he was referring to a supervisor with whom he had an off-duty altercation with in a bar washroom before leaving the threatening message.

The arbitrator said it was appropriate to give the worker a last chance to demonstrate he had learned from his misconduct providing he use the EAP and comply with all aspects of that plan. The arbitrator also said the worker could not engage in any significant misconduct for 12 months.

See U.S.W.A., Local 2894 v. Walker Exhausts, 2005 CarswellOnt 2469, [2005] L.V.I. 3559-4 (Ont. Arb. Bd.).

$25 grocery theft

A 45-year-old grocery store worker on the night shift stole about $25 worth of groceries consisting of coffee, cleaner, two cans of salmon, raspberry vinegar and some batter mix. He had spent his entire working career with the grocery chain. The theft was discovered during a random parcel check. An investigator saw the worker leaving the store with a duffle bag and asked him to open it. The worker said it only contained gym clothes, left and got in his car. The investigator followed him to his car and said he needed to see the bag.

The worker opened his car door and the investigator picked up the bag and opened it. He asked the worker if he had a receipt for the groceries and then they went back into the office. He was suspended and then fired.

The arbitrator’s decision: The arbitrator upheld the termination. It said theft is “serious misconduct” that strikes at an employee’s trustworthiness, the very foundation of an ongoing employment relationship.

The worker argued he took the groceries because he was undergoing financial difficulties and relied on his co-operation with the investigator. But the arbitrator said the fact he eventually allowed the investigator to look into his bag can be attributed to the inspector’s persistence more than anything else. The continuing reliance on those two facts undermined, rather than re-established, the trust necessary for an ongoing employment relationship.

See Loblaws Supermarkets Ltd. v. U.F.C.W., Local 1000A, 2005 CarswellOnt 4219, [2005] L.V.I. 3579-7 (Ont. Arb. Bd.).

This list of arbitration decisions was compiled with the assistance of LabourSource, an online labour relations tool from Carswellbusiness. For more information visit www.carswell.com/trial/labour.asp.

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