'While the grievor deserves serious discipline, termination of employment was excessive'
An Ontario arbitrator has ordered Cargill Limited to reinstate a long-serving butcher fired after allegedly urging co-workers to walk off their jobs, ruling that while the misconduct was serious, discharge was an excessive penalty.
In an award dated March 9, 2026, sole arbitrator John Martelli rescinded the termination of 24‑year employee Dung Phan at Cargill’s Guelph “harvest facility” and substituted a six‑month unpaid suspension. Phan is to be returned to his position “as soon as reasonably practical” with back pay and full seniority.
Phan – represented by United Food and Commercial Workers Union, Local 175 & 633 – grieved his July 25, 2024 dismissal for cause. The company alleged that on July 16, 2024, in the second week back from a six‑week strike, Phan repeatedly encouraged employees on the hip rail to “sign off” their jobs at the same time, effectively abandoning their posts.
The plant processes roughly 1,700 cattle per day and relies on a conveyor system where, as General Foreman Rob Furlong testified, “any little hiccup” can stop production.
Incident and witness evidence
Continuous improvement specialist Liam Wilson testified that while standing with a supervisor near the elevated hip rail, he heard Phan say, “You all should sign off the job at once,” multiple times over about five minutes in a “frustrated” tone. Wilson said Phan was addressing “maybe 5 to 10 individuals above him at the hip rail.”
Wilson told the hearing that “signing off” means surrendering one’s job and returning to a lower‑rated classification. If everyone did so at once, “we would not be able to run production in that particular area,” he said.
Martelli accepted that evidence. He found that at about 2:00 p.m. on July 16, 2024 “the grievor repeatedly advis[ed] his co-workers to ‘sign off’ their jobs ‘all at once’ and to leave their tables,” and that, this was said “intentionally with a hope that it would cause disruption to the line.”
Wilson intervened after the third utterance, telling Phan he was “excellent” and needed support, and urging him to be a “team player,” before reporting the incident to Furlong.
Lead hand Jason Lewis, a 21‑year employee and bargaining unit member, later provided a statement at management’s request. He testified that he heard Phan tell a co-worker “that job is garbage now and you should sign off,” and “I wouldn’t be doing that if I were you. Just sign off and go back to table 2.”
Under cross‑examination, Lewis agreed the exchange was “more like joking,” said he had “no concerns” at the time, and stated he would not have reported it had he not been called into the office.
Employer position and investigation
Despite this, Cargill argued the comments amounted to an attempt to instigate an illegal work stoppage during the life of the collective agreement, particularly sensitive so soon after a strike.
Senior HR business partner Leslie Knarr testified she learned of the incident on Friday, July 19, 2024, and recommended that Phan be sent home pending investigation. In a July 23 meeting with management and his union representative, she said Phan repeatedly responded “I don’t recall” when asked if he had told workers to sign off. After a union caucus, he said, “I don’t recall what happened. But if I did something, I apologize.”
Knarr said that management concluded “the trust was broken because he would not admit anything,” adding, “our concern was that he would come back to work and do the same thing – that is tell the workers that we should go back on strike.”
Furlong similarly testified that when confronted, Phan said, “I don’t recall saying it, but if I did then I am sorry,” which he did not find “very truthful.”
Credibility and knife allegation
In his decision, Martelli found that Phan was “less than forthright” in that meeting and at the hearing, where Phan initially testified, “I did not say that to the co-workers. I remember talking to a co-worker. That’s it. To pass the day,” before reverting under further questioning to his earlier “I don’t recall” stance.
Martelli described this “flip‑flop” as “troubling and disconcerting” and said it dealt “a severe blow to his credibility.”
However, the arbitrator rejected a key element of the company’s case. Cargill’s termination letter alleged that Phan had raised his hand in the air “holding a knife” when speaking to co-workers. Martelli found the employer had “proffered no reliable evidence” that Phan’s use of his knife amounted to misconduct, concluded the knife allegation had “no merit whatsoever,” and called it an “irrelevant consideration” that was problematic for the employer.
The union also argued Cargill breached the collective agreement’s five‑day timeline for imposing discipline, but Martelli ruled the clock started on July 19, 2024, when HR and senior management became “fully aware of the circumstances,” making the July 25 termination timely.
On penalty, Martelli cited the seriousness of even threatening an illegal strike, the repeated nature of the comments and the potential economic harm in a line‑based operation. He weighed that against Phan’s nearly 25 years of service, his “respectable” record, the lack of actual production impact, the employer’s reliance on the unproven knife allegation and evidence that management valued his skills.
“While the grievor deserves serious discipline, termination of employment was excessive,” Martelli wrote. “The grievor deserves another chance.”
A recent Ontario supreme court decision shows how the dismissal of a short-tenure employee can remain in active litigation more than a decade after the employment relationship ended.
