A good reason to get in management’s face?

How much leeway should union reps get for insubordinate behaviour if they’re standing up for employees?

By Jeffrey R. Smith

When an employee defies the boss, it can be a pretty serious matter.

A successful, efficient and smooth workplace depends on employees doing what they’re supposed to be doing, so if anyone rocks the boat, it can have consequences. That’s why insubordination is often considered a serious form of employee misconduct that can lead to discipline or even dismissal.

But what if the employee has a good reason to be insubordinate?

Legally, under most occupational health and safety legislation across Canada, employees are allowed to refuse work if they legitimately consider it to be unsafe — and an objective, reasonable person would reach the same conclusion. In a unionized workplace, employees who are union representatives — such as shop stewards — are given extra leeway to challenge employers if they have legitimate concerns about issues that affect employees. But how much leeway should they get, and when does the line towards insubordination get crossed?

Last year, the Saskatchewan Arbitration Board heard a case where an employee of the City of Saskatoon was suspended for three days without pay following a heated argument with a manager (Saskatoon (City) and CUPE, Local 47 (Ostrowsky), Re, 2012 CarswellSask 636 (Sask. Arb. Bd.)).

The argument happened in a morning departmental meeting in which the manager asked her department about rumours that they wouldn’t co-operate with a new foreman. The employee immediately took offense and started speaking loudly to the manager, cutting him off. The employee also stated she wouldn’t leave if asked because she needed to “stick up for the guys.” She didn’t formally state she was a shop steward, but it was common knowledge and the manager knew she was one.

After investigation of the incident, the employer decided to suspend the employee for insubordination. Management felt the employee’s conduct violated its respectful workplace policy, which encouraged co-operative resolution of problems and maintenance of a positive work environment. Management also felt the meeting wasn’t the appropriate venue to challenge the manager as a union representative, so she couldn’t use her role as an excuse.

The board disagreed, finding the employee’s concerns were legitimate and the allegation against the department workers made it appropriate for her to step forward in her union role. Though her behaviour was aggressive and loud, reports of the incident indicated both sides made the situation heated. There was insufficient proof of just cause for serious discipline such as an unpaid suspension, said the board.

In a situation such as this one, at what point should an employee in a role as a union representative — or other similar position in a non-union workplace, such as a health and safety rep — be considered acting inappropriately? If an employee’s misconduct is related to a legitimate issue, should that affect the level of discipline allowed or should the misconduct be taken at face value? How can an employer encourage such employees to discuss issues directly with management rather than creating undesirable situations like starting arguments in meetings?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at [email protected] or visit www.employmentlawtoday.com for more information.

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