Health-care centre had just cause to dismiss worker: Arbitrator

Employee had history of discipline issues, insubordinate conduct

By Jeffrey R. Smith

An Ontario health-care employer had just cause under its collective agreement to dismiss a worker who demonstrated insubordinate and potentially threatening behaviour, an arbitrator has ruled.

The worker was a part-time dietary aide for Specialty Care Trillium Centre, a facility providing long-term care and retirement residences in Kingston, Ont. Hired in 2006, the worker was a frequent presence in the centre’s progressive discipline system. 
He accumulated a disciplinary record that included a verbal warning, a written warning and four separate suspensions of increasing length — one day, two days, three days and five days.

In early 2014, the worker applied for a posted position in maintenance at the facility. He took a test for the position on March 11. During the test, the worker became angry and upset, calling the test stupid and not right. Despite being told to calm down by the HR manager — who was administering the test — the worker continued to become agitated and raise concerns.

Following the test, the worker went to the office of the buildings operations manager — who had only been with the centre for one year at the time. The worker approached the manager aggressively, said the test was “bullshit” and the manager didn’t know what he was doing. According to the manager, the worker was swearing and it was difficult to make out everything he was saying.

The worker then backed off and apologized for his tirade, but he soon became angry again and continued his aggressive behaviour. The manager asked him to leave and, concerned about such behaviour in a workplace with mostly female employees, he reported the incident to the HR manager and executive director. After learning of this incident, the HR manager added that the worker had followed him to his car after finishing the test.

The Trillium Centre also learned another dietary aide had seen the worker in his car in the parking lot a few days earlier with a gun. She said the worker took the gun out of a box and “pumped it,” scaring her. The worker called out to her and told her it was only a fake gun. The co-worker later told other employees about it and said she had been scared at first but believed him when he said the gun was fake.

On March 14, management met with the worker and a representative from his union, the Service Employees International Union (SEIU). The worker denied any inappropriate conduct with the building services manager. He agreed he approached the manager to complain about the test because he felt the questions weren’t related to the job requirements and some of his answers were marked wrong when they were correct. He claimed he spoke to the building services manager in a “calm and rational way” but it was the manager who became aggressive, saying he had been in the military and asked him “Who are you to question me?”

As for the gun, the worker said it was an “airsoft” gun he had purchased during his lunch break and he decided to open it and look at it while waiting for his wife — who was also an employee at the centre — in the parking lot. He said he didn’t think anything of it at the time but acknowledged it wasn’t a good idea and he wouldn’t bring such a gun to work again. He initially said no-one had seen him with the gun but then changed his story when the co-worker’s report came to light.

The centre determined the two incidents showed “a gross lack of judgment” and a violation of its workplace harassment and violence policy. Given his disciplinary record and “limited acknowledgement of the severity of (his) actions,” the centre terminated the worker’s employment.

The SEIU grieved the termination, arguing that the centre didn’t have just cause as required under the collective agreement. It claimed the worker’s conduct couldn’t reasonably have been seen as a threat of physical violence to the building services manager, the HR manager or any other employee. It also argued the gun incident was a “red herring” in the case being built for his dismissal, as the worker was simply looking at a fake gun in his car and happened to be spotted by someone.

Arbitrator Norm Jesin accepted that the worker was angry about the test for the posted position and let his anger about it get out of control, confronting both the HR manager who was administering the test and afterwards the building services manager. 
Jesin found there was no implication of physical violence in the office confrontation and it wasn’t likely the building services manager felt he was about to be physically attacked. However, when he confronted the HR manager, the worker said he would regret his actions, which could be considered a “veiled threat,” said Jesin.

The arbitrator also found that the worker had significant previous discipline and “a continuing pattern” of refusing to accept management authority, and it was clear that rather than pursue a complaint through SEIU, he preferred to directly challenge the centre and how it administered the test.

Jesin determined the worker’s “unwillingness to accept responsibility for his actions or to accept the authority of the employer to exercise its management rights in the operation of its business,” his disciplinary record and his veiled threat to the HR manager — which Jesin characterized as serious in light of Ontario’s Bill 168 that placed specific duties on employers to protect against workplace violence — provided the Trillium Centre with just cause for dismissal under the collective agreement.

For more information see:
Specialty Care Trillium Centre and SEIU, Local 1 (Tucker), Re, 2016 CarswellOnt 6616 (Ont. Arb.).

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