Relief operator in Ontario ‘engaged in repeated and deliberate acts of insubordination’ and didn't acknowledge misconduct, says arbitrator
An Ontario arbitrator has ruled that an employer’s termination of a unionized worker was void — but only because the discipline came too late.
In Pan-Oston Ltd. v. Unifor Local 1987, arbitrator Paula Turtle found that the termination of a relief operator was issued outside the mandatory disciplinary timeline in the collective agreement.
She ordered his reinstatement with full back pay despite “repeated and deliberate acts of insubordination.”
Pattern of refusals by worker
Pan-Oston, a manufacturer of retail store fixtures in Ontario, began disciplining Johnston in May 2022 for refusing to sign company training forms, citing a name misspelling. He received a verbal warning, then one-day and three-day suspensions.
Three further suspensions followed in August 2022:
- five days for refusing to sign Fleming College and Ministry training forms
- a suspension for failing to return to work when directed, originally issued as five days, then converted by the employer to six days, and ultimately reduced back to five days by Turtle on arbitration
- seven days for continuing to refuse to sign company training forms.
On June 30, 2022, the worker also discouraged co-workers from signing the training forms, telling them the company was committing fraud. Turtle found his refusals unjustified and dismissed Grievance #49, upholding the five-day suspension.
"His explanations for refusing to sign the forms are disingenuous," she wrote, adding that "none of his objections establish an exception to the 'obey now, grieve later' principle that would support a refusal to comply with the employer's direction."
The final act of insubordination came in August 2023. The relief operator took a family responsibility day, then refused, despite being asked at least five times by management, to fill in the required employee absence form on his return to work on Aug. 15.
‘Continuing breach’ of policy
Pan-Oston terminated the relief operator on Sept. 8, 2023. However, Article 8.05 of the collective agreement required discipline to be imposed within 10 working days of the infraction — Sept. 8 was more than 10 working days after Aug. 15, which Turtle identified as the infraction date.
The employer argued the infraction date was Aug. 24, 2023, when employees received written notice of the form requirement. It also argued the relief operator’s daily failure to submit the form was a "continuing breach," resetting the clock.
Turtle rejected both positions: "To be clear, the grievor's failure to fill in the FRD form was insubordinate. The employer's direction was clear and reasonable. But his termination wasn't imposed within the time set out in the collective agreement."
Reinstated despite misconduct
Pan-Oston urged Turtle not to reinstate the operator, citing his conduct during the hearing and his lack of remorse, and noted it had extended the disciplinary process — giving the worker additional opportunities to comply — specifically because he held a union position.
Turtle was sympathetic to the no-reinstatement argument. She wrote in the April 15 decision: "He engaged in repeated and deliberate acts of insubordination, and he didn't acknowledge his misconduct during his evidence."
However, the employer provided no legal authority to support denying reinstatement when a termination is void on timeliness grounds. Because the termination was declared void for being untimely, Turtle did not reach the question of whether there was just cause for the termination itself.
"I hereby direct that the grievor be returned to the position he occupied when he was terminated, with compensation for all lost wages, benefits, and other amenities of employment."
Under Article 8.05, the employer could have requested a written extension of the disciplinary time limit. It did not.
