Termination excessive for worker using profanity

The grievor was not able to work due to an illness and was waiting for short-term disability benefits. After being assured he would be covered, the decision was reversed after a long delay. He used profanity to the insurance provider. The arbitrator found that the company's response of termination was disproportionate and he substituted a warning.

A worker was fired for using profanity during his telephone conversation with a representative from a third-party benefits provider concerning the status of his claim for short-term disability benefits.

D.B. worked as a Warehouseman for a company that manufactured injection molded thermoplastics. He was hired on Jan. 31, 2011.

In his 11 months of employment, D.B. was absent due to illness for about 10 days. He was also late a handful of times, for which he was issued a warning letter.

D.B. also missed a number of days due to back pain, which he began to experience in the spring of 2011. Back pain caused him to miss nine days in October. His employer then arranged modified duties.

D.B. consulted his physician and underwent tests. He also filed a claim with the Workers’ Compensation Board. The board informed D.B. by letter on Nov. 29 that the evidence did not support his claim that the condition was work-related. D.B.’s claim was denied.

Denied benefits from the compensation board, D.B. also applied on Nov. 29 for non-occupational sickness and accident benefits from the employer’s third-party benefits provider under the terms of the collective agreement.

“Dicked around”

D.B. was given a claim number and assigned a case manager. The expectation was that D.B. would know about the status of his file within five days.

Hearing nothing, D.B. called the insurance provider during the second week of December for information on the status of his claim. D.B. was informed by his case manager that his claim would be processed soon and that he would receive a payment of about $1,000 before Christmas.

D.B.’s claim was not processed before Christmas. There was no payment nor any letter or phone call from his case manager.

D.B. inquired again about his claim after Christmas. He was informed that his case manager was on holiday and that someone else was handling his file. D.B. left his phone number, but his call was not returned. D.B. was told that if he had not heard anything by the end of the month that he should call back.

On Jan. 3, 2012, D.B. was contacted by phone by a new case manager. He was told his claim was denied because of inadequate medical information.

In the case manager’s account of the call, D.B. was hostile. She said he accused the insurance provider of “dicking him around.” She terminated the call when — according to her — D.B. told her to go “f—- herself.”

The case manager reported the call to D.B.’s employer. A conference call between managers was convened the next day. It was resolved that D.B. should be fired.

The employer did not contact either D.B. or any union representative concerning the call or the termination.

The letter of termination said that D.B.’s conduct was contrary to the culture of the organization. D.B. was offered a settlement agreement in exchange for signing a release.

The union grieved.

The employer said that D.B.’s use of vulgar sexual language was intimidating and abusive. He showed no remorse and did not accept responsibility. D.B.’s misconduct warranted dismissal, the employer said.

The union said there was no cause for discipline. There was no employer interest in the conversation, the union said. Moreover, the employer took no steps to properly investigate the allegations against D.B. and instead chose to leverage its decision to terminate D.B. by imposing a settlement. Termination was excessive, the union said.

The Arbitrator agreed.

D.B. was justifiably frustrated, the Arbitrator said. The insurance provider had failed to meet its own standards with respect to the timeliness of processing claims.

“Frustration-driven aberrant use of inappropriate language”

D.B.’s frustration may also have been exacerbated by what he perceived to be a condescending tone from the case manager who relayed to him familiar details of the claim while she avoided explaining the substantive reasons concerning why the claim was denied.

“It is understandable why [D.B.] interpreted this as more of the same organizational ‘dicking around’ — wasting time, not being productive, not taking his claim or him seriously,” the Arbitrator said.

D.B. did not deny using the “F” word but he insisted that it was not directed at the case manager as she had claimed. According to D.B., he twice said that there was no “f——— reason” to deny the claim. D.B.’s claim was credible, the Arbitrator said.

“I find that in the context, his use of the ‘f’ word was directed at [the insurance provider] with which he had experienced frustration, delay and unfulfilled expectations. It was not directed to a person to whom he was speaking for the first time. It was frustration driven aberrant use of inappropriate language that he had not previously used with [his first case manager] or other [employees of the insurance provider]… There is no evidence he used this or similar language in the workplace.”

The incident was sufficiently work-related to draw an employer sanction, but dismissal was excessive in the circumstances.

The termination was replaced with a written warning.

Reference: Teamsters Local Union No. 213 and Canplas Industries Ltd. James E. Dorsey — Sole Arbitrator. Brian W. Savage for the Union. M.J. O’Brien for the Employer. April 28, 2012. 16 pp.

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