The grievor had a personal issue with one member of management and the parties had reached an agreement regarding their interactions. When the grievor became a union official and their relationship again became hostile, the company tried to use an earlier event to support discipline. The arbitrator disagreed and reduced the termination to a suspension.
A worker was fired for allegedly failing to live up to the terms of a settlement agreement.
G.T. worked at a chemical manufacturing company. He had difficult working relationships with a number of his supervisors.
Following an unspecified incident in 2008 with supervisor R.D., he had made a request that R.D. refrain from making any contact with him except for work purposes. G.T. also had difficulties with his direct supervisor R.T.
G.T. perceived that he was being baited and harassed by members of management. Management perceived that G.T. was engaging in disruptive and unco-operative behaviour calculated to undermine management authority.
A number of grievances filed by G.T. were settled under the terms of a Minutes of Settlement agreement entered into on Feb. 2, 2010. The settlement required G.T. and R.T. to make good faith efforts to live up to the terms of the collective agreement that call on the parties to promote harmonious relations between the parties.
G.T. became union chief steward on Nov. 4, 2009 and consequently came into more frequent contact with R.T.
G.T. was in a meeting in R.T.’s office on Aug. 24, 2010, when R.T. called out a greeting to R.D., who was walking by.
R.D. stuck his head into the office and greeted R.T. Noticing then that G.T. was in the office, he said hello to G.T. as well.
G.T. did not return the greeting but instead turned his head and dismissively showed R.D. the back of his hand.
R.D. left and the meeting continued.
Following the meeting, G.T. went to R.D.’s office. G.T. said that he considered R.D.’s greeting to be provocative. G.T. referenced their verbal understanding that R.D. was to restrict communications to business matters. G.T. said he intended to complain to management and seek a written order to that effect.
R.D. then complained to R.T in an email. R.D. said that G.T.’s request was unreasonable and that his demeanour in his office was threatening.
R.T. followed up with both G.T. and R.D. to determine what happened.
As a result, G.T. was issued a written warning that referenced a “pattern of conduct” referred to in the settlement. The warning also stated that G.T. had intimidated and harassed R.D. and that his conduct had been antagonistic and insubordinate.
G.T. grieved the written warning. G.T. arranged a meeting with R.T. on Sept. 9, 2010. Another union official accompanied G.T.
G.T. said the written warning issued by R.T. showed that R.T. had misinterpreted what G.T. had said. In future, G.T. said R.T. could only communicate with him in the presence of the union steward.
The meeting then deteriorated as G.T. and R.T. berated and insulted each other.
G.T. filed another grievance and was later fired.
The letter of termination said that G.T. was not living up to the commitment he made in the settlement agreement. He was continuing to engage in a pattern of disruptive behaviour by filing grievances and incident reports alleging harassment and intimidation. The letter said his attitude was insubordinate and was interfering with the efficient operations of the business. In the circumstances, he had caused an irreconcilable rift in the employment relationship.
The Arbitrator disagreed.
G.T. was not required to be friends with everyone he worked with. However, it was a reasonable expectation that he be civil and courteous. G.T. failed to live up to that expectation and his behaviour towards R.D. was, consequently, contemptuous of R.D.’s authority as a supervisor.
G.T. was evidently moved by the same impulse to confront R.T. “That is, he intended to tell a member of management how he could interact with them in the future. It was not to discuss the matter or seek a resolution, it was to direct a result.”
There was no doubt that R.T. reacted “abysmally.” Nevertheless, G.T.’s behaviour was insubordinate, the Arbitrator said.
However, G.T.’s behaviour was not serious enough to warrant discharge.
The very fact that the discharge letter referenced G.T.’s behaviour prior to the Minutes of Settlement was fatal to the validity of the discharge, the Arbitrator said.
The effect of the settlement was to wipe the slate clean. In referencing pre-settlement issues in the termination letter, the employer allowed itself to “be informed by a purported history that no longer existed. The grievor deserved some discipline for his insubordinate behaviour, but there was no basis for discharging him from his employment.”
The Arbitrator substituted a three-day suspension in place of the termination.
The Arbitrator also rejected the employer’s request that G.T. not be reinstated and he instead be awarded damages in lieu of reinstatement.
“The analysis of whether someone should be paid damages in lieu of reinstatement does not come down to a popularity contest. It is a rarely invoked remedy that is only granted when there is no reasonable prospect that the employee can successfully reintegrate into the workplace,” the Arbitrator said.
That was not the case here.
Reference: Univar Canada Ltd. and Teamsters Chemical, Energy and Allied Workers Local Union No. 1979. Daniel A. Harris — Sole Arbitrator. David Elenbass for the Employer. Micheil Russel for the Union. Nov. 7, 2011. 31 pp.