Worker disciplined by dismissal: Arbitrator
A journeyman painter was laid off after a misunderstanding about a cleaning job, despite a clear need for more workers on the job.
David Stewart had worked for Wood Group-Cahill, a contractor on the Hebron Project Employers’ Association 350 kilometres southeast of St. John’s, when on Sept. 6, 2016, he was informed that he was laid off.
Stewart had worked on the site since April 19. The International Union of Painters and Allied Trades (IUPAT), Local 1984 grieved the decision and argued it was an unjust dismissal.
The situation first started when Stewart and Jeffrey Shaw were assigned a painting job during the 7 a.m. pre-shift meeting. They went directly to the helideck and noticed some water had to be cleaned up before they could paint.
Labourers interrupted their work and informed them it was their job to do the cleaning work. Stewart and Shaw stopped what they were doing and waited for the cleaning to be done before they started painting.
A superintendent arrived at the scene and berated Shaw and Stewart for not working. The superintendent cleaned up the water himself.
The superintendent then summoned Garry Johnston, foreman, to the helideck and said the job was cancelled. Stewart and Shaw complained to Brian Perry, the shop steward, about the superintendent doing bargaining unit work by sweeping the deck.
A series of meetings were held between the workers and the superintendent, who became angry when he perceived Stewart and Shaw were not working.
The next day, Stewart was at home during his scheduled seven-day rest period and he was informed by telephone that he was laid off due to a shortage of work. Stewart testified he was confused by this because there was talk of more work coming up and he believed that his layoff was a result of him informing the union about the superintendent doing the work of labourers on Sept. 5, as well as the fact he refused to do unsafe work (painting while the deck was wet).
Stewart returned to the job on Nov. 21 and worked until Dec. 12, when he was again laid off. Stewart was back on the job on Feb. 22, 2017, and he was working at the site at the time of the grievance hearing.
The employer argued that Stewart had been laid off due to lack of work, but the hearing heard testimony that other painters were working overtime before and after Stewart was laid off. It said the collective agreement called for a worker to be given four hours of notice of layoff and, as such, Stewart was properly notified.
Arbitrator Dennis Browne upheld the grievance and ordered Stewart to receive “full redress” for the time missed.
“I am satisfied that this is a discharge and not a layoff. I come to that conclusion for two combined reasons. First, the reasons for the layoff are essentially disciplinary in nature: the alleged failure of (Stewart) to work properly and efficiently and the alleged safety issues. Second, (Stewart) was not merely laid off. He was told he would not be recalled to the site. The only thing that suggests this might be a layoff is the fact that the employer used the word ‘layoff’ in the termination letter,” said Browne.
“Given all of the evidence, it was more probable than not that (Stewart) was discharged as a disciplinary response to the altercation of Sept. 5, 2016, and not laid off for any economic reason.”
The arbitrator relied on evidence of staffing levels from the union that showed “hours for work for painters was increasing,” and the employer’s histogram — which it offered as evidence — was only a planning tool and was not “reliable.”
Reference: Hebron Project Employers’ Association and International Union of Painters and Allied Trades, Local 1984. Dennis Browne — arbitrator. Blair Pritchett for the employer. Ray Mitchell for the employee. July 13, 2017. 2017 CarswellNfld 369
