Vancouver engineer grieves sanction for making threatening phone call

Suspension excessive for 40-year worker: Union

An employee with 40 years of service with the Vancouver School Board was given a 10-day suspension after making “threats” toward a supervisor during a phone call about his vacation scheduling.
Kulwant Johal, building engineer, was phoned by Gilbert Francisco, operations supervisor, at 3:30 p.m. on Sept. 1, 2017, to discuss his upcoming scheduled vacation. 
Francisco wanted to advise Johal that, as per board policy, he was to begin his vacation on Sept. 5, which was immediately following a medical leave. 
But Johal said he wanted his vacation to begin the following week, on Sept. 11, with the fifth week of his vacation allocation being added to the time off, which would run from Oct. 10 to 16. 
Johal was advised he could return to work the week of Oct. 4 to 9.
When Johal continued to request Sept. 11 as the beginning of his vacation, Francisco refused and said the decision was also supported by Brian Bell, operations manager.
Upon hearing this, Johal yelled at Francisco, and berated Bell, according to Francisco, saying: “He is going to regret this for the rest of his life, he will remember me for this. He is training you to be like him and treat me this way. This is just another way for you guys to screw me up.”
Francisco told Johal he could request another leave for the week of Oct. 4, but Johal simply said, “I know what I can do, you don’t need to tell me,” and he hung up the phone, testified Francisco.
At 4:07 p.m., Johal sent an email to Francisco and again asked for the time off to begin on Sept. 11. “Now you are forcing me to take vacation from Sept. 5 to Oct. 3, 2017. Then come back to work for 3 days (Oct. 4 to 6) and then go on my approved fifth week vacation,” wrote Johal.
Francisco reiterated the board’s position in a return email to Johal.
After he advised management about the contents of the original phone call, an investigative meeting was held on Sept. 14.
“As far as the threat-making, nothing happened, it is all news to me,” said Johal during the meeting, and he added, “To me it seems like make-up, I don’t know whether Gilbert made it up.”
On Oct. 11, Johal was given a 10-day suspension. The International Union of Operating Engineers (IUOE), Local 963, grieved and argued that because Johal had no previous discipline on his 40-year record, the penalty was excessive. The grievance also requested the employer pay Johal for overtime he would have earned had he worked the 10 days.
Arbitrator Vincent Ready agreed and upheld the grievance and ordered a three-day suspension instead. 
“While I have also considered the grievor’s denial and lack of remorse to be an aggravating factor, any inclusive and reasoned balancing of applicable factors and circumstances results in a conclusion that the discipline imposed was excessive.”
“Looking at the context and entirety of the conversation, it concerned a vacation rescheduling request and proceeded along expected conversational lines, until the grievor raises, and reacts inappropriately to, the perceived involvement of Brian Bell in the denial,” said Ready. 
“The tenor and tone of the conversation seems to be on something of a bell curve, starting and ending innocuously enough, with a flare-up in the middle,” said Ready. 
However, the arbitrator dismissed the claim for overtime. 
“The union’s overtime claim is based on LOU #1 which states that it is the building engineer’s responsibility to provide someone to perform necessary overtime. Union counsel contends further that the building engineer’s authority over and entitlement to overtime is unaffected by suspension (actual or pending investigation), vacation, or scheduled days off,” said Ready.
“I do not agree with that assessment.”
Reference: Board of School Trustees of School District No. 39 (Vancouver) and International Union of Operating Engineers, Local 963. Vincent Ready — arbitrator. Peter Csiszar for the employer. Richard Edgar for the employee. July 19, 2018. 2018 CarswellBC 2055

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