Celebrating supervisor’s firing was inappropriate at work, but did it deserve a suspension?
Two five-day suspensions imposed on a worker were excessive, with both incidents deserving of no more than a written warning, according to an Alberta arbitrator.
Imperial Dade Canada operates a distribution and shipping facility in Calgary. The worker was hired in 2002 to be an order picker and eventually moved up to the role of lead hand shipper/co-ordinator. He didn’t have any discipline on his record.
On Dec. 26, 2023, a backup shipper went on a leave of absence, so the worker texted his supervisor to confirm the absence. The supervisor asked the worker if he wanted another lead shipper to come in early to help out, but the worker said he could handle it, although he might have to come into work at 4:30 a.m. instead of his usual 5 a.m. start time. The supervisor said, “that works” and there was no further discussion.
After Dec. 26, the worker started coming in at 4:30 a.m. to make up the work of the employee on leave, assuming that he had approval to do so during the entire period of leave. He didn’t hear anything else until Jan. 11, 2024, when another supervisor asked him why he had started early. The worker explained about the text exchange with the first supervisor, but the supervisor said it would be treated as a shift change and not overtime. The worker texted the first supervisor but didn’t receive a response, so he assumed he could continue to start at 4:30 a.m. and leave at 1 p.m. rather than 1:30.
The next day, the first supervisor asked the worker why he had started early and the worker reminded him of the Dec. 26 text exchange.
On Jan. 15, the first supervisor came to the worker’s office with the shop steward and asked him again about starting earlier. The worker again referred to the text exchange and said he would need help with the extra duties if he couldn’t work extra time. The supervisor said he should resume starting work at 5 a.m.
Scheduling confusion leads to suspension
The next day, the worker started at his usual time of 5 a.m. and asked the second supervisor for help. The supervisor took some shipping sheets, which the worker assumed meant that he would do some of the tasks. However, the first supervisor arrived a bit later and asked why some trucks weren’t loaded. He told the worker to do the shipping sheets immediately, but the worker became angry and said he needed to finish what he was doing and the other supervisor was doing them. The supervisor then said he was refusing to do work and suspended the worker indefinitely. The suspension ended up being for five days for alleged refusal of work and insubordination.
On Feb. 9, there was a meeting for everyone in the shipping office at which the first supervisor announced that the second supervisor was no longer with the company. After the meeting, the worker took a break and picked up a coffee and some doughnuts – something he claimed he did every two-to-four weeks. He put the doughnuts at the back of the shipping office and several people came as word spread about them.
According to the worker, he didn’t tell anyone why he bought the doughnuts. However, at least two other employees reported that he was “dancing and smiling” and giving people high fives and fist bumps. One employee recalled that the worker was gloating that he had caused the second supervisor to be fired, and the other said he felt uncomfortable and left the office.
The first supervisor investigated by providing a questionnaire to the worker and other employees who may have been present, with questions asking if he was celebrating and why his behaviour was appropriate at work. Management then met and determined that it was another incident of disrespectful behaviour, and the worker hadn’t changed after the first suspension. While Imperial had a progressive discipline program of written warnings and suspensions of varying length, management felt that this second incident also warranted a five-day suspension, which was issued on Feb. 20 for “inappropriate, unprofessional” conduct that “negatively impacted the work environment.”
The union grieved, arguing that the two suspensions were unwarranted, unfair, and unjust. On the alternative, if they were deserved, they were excessive, said the union.
The arbitrator found that the employer’s witnesses – the supervisor and the employees who witnessed the doughnut incident – were credible, as they were calm and straightforward, and had no reason to embellish. The worker was also relatively credible, although he seemed to diminish the events of the doughnut incident to cast himself in a better light, the arbitrator said.
Incremental discipline principle
The arbitrator also noted the principle of “incremental discipline,” saying that employees “should not receive the harshest punishment for wrongful acts right away” and they should be given a chance to improve or explain misconduct.
The arbitrator found that the first incident stemmed from a misunderstanding over the worker’s start time, which was based on a text exchange with a supervisor. The evidence indicated that, when the issue was raised, the worker adjusted his start time accordingly.
There was no clear refusal to work or evidence of insubordination, as the investigation was insufficient and the worker wasn’t given a sufficient opportunity to explain his actions – such as he believed the other supervisor was preparing the shipping sheets. Poor communication by all parties created confusion, but there was no insubordination, said the arbitrator in determining that a five-day suspension was excessive and a verbal or written warning would have sufficed in the circumstances.
“There was a period of time when the worker was starting early and no one said that he couldn’t, and as soon as he was made aware that he couldn't start early, he stopped - that that was pretty easily dealt with as not real misconduct,” says Laura Dunnigan, an employment lawyer at Mathews Dinsdale in Calgary. “And being asked to do something by his supervisor and refusing to do it because he was doing something else - the worker’s evidence, and it was found to be credible, was that he’d already thought somebody else had done the work he was being asked to do - he wasn't given a meaningful opportunity to respond, and the supervisor who disciplined him acted rashly and quickly when he immediately implemented the suspension.”
Regarding the second incident, the arbitrator found that, based on the account of the worker and other employees, the worker purchased doughnuts and engaged in celebratory acts in the shipping office following the termination of his supervisor. The arbitrator agreed with Imperial that these actions were inappropriate, unprofessional, and negatively impacted the work environment, and it was somewhat premeditated. However, the incident didn’t constitute insubordination and it didn’t significantly harm Imperial’s workplace, the arbitrator said.
Suspension was excessive discipline
Given that a five-day suspension is significant discipline, a written warning would be more appropriate, the arbitrator said.
Because the arbitrator didn't find the misconduct to be malicious or insubordinate, and it was relatively minor, he focused on the fact that it was a long-term employee with no prior record of disciplinary action, according to Dunnigan.
“I think the arbitrator wanted to have evidence that the employer assessed the worker’s history, disciplinary record, or if lesser discipline may have achieved the same result,” she says. “On the second incident, I was surprised that there wasn't a more severe penalty given the finding that the worker gave unreliable testimony and he didn't admit any wrongdoing - that’s typically an important factor that arbitrators look at, and it didn't seem to weigh heavily in this arbitrator's decision.”
“What you can take from this is that if you have a long-term employee with very little to no disciplinary record, they’re going to be looking at whether or not a less severe consequence might achieve the same results,” adds Dunnigan.
Imperial was ordered to reimburse the worker for the five days’ pay lost from each suspension and to issue a written warning for the doughnut incident.
Careful investigation is essential
This case was found entirely on witness testimony, which is difficult for an employer, says Dunnigan.
“To the extent you can have records that don't contain hearsay, get those in, and get all those witnesses in - you need to have your ducks in a row,” she says. “Slow down, do your proper investigation, and when you're assessing discipline, make sure you're thinking about the individual's history, length of service, likelihood of repeat, and make sure you can show that you engaged in that process - if you can demonstrate that you did, it's difficult for an arbitrator to step in.”
