DISCIPLINE AND DISCHARGE
In this posting, guest blogger Diane MacLean provides a review of BC labour arbitration awards issued in 2012 that deal with discipline and discharge. Representing members who are disciplined by the employer is an important responsibility of union representatives. Diane's overview and summaries provide information which we hope you will find helpful.
GUEST POST by Diane MacLean
This post and the ones to follow will report on 2012 arbitration decisions regarding disputes over discipline and dismissal. Summaries of the cases referred to in this overview are found at the end of the post.
The B.C. Labour Relations Code contains provisions regarding these kinds of disputes. Section 84 (1) provides:
Every collective agreement must contain a provision governing dismissal or discipline of an employee bound by the agreement, and that or another provision must require that the employer have a just and reasonable cause for dismissal or discipline of an employee, but this section does not prohibit the parties to a collective agreement from including in it a different provision for employment of certain employees on a probationary basis.
Further, Section 89 provides:
For the purposes set out in section 82, an arbitration board has the authority necessary to provide a final and conclusive settlement of a dispute arising under a collective agreement, and without limitation, may
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(d) determine that a dismissal or discipline is excessive in all circumstances of the case and substitute other measures that appear just and equitable,
Many arbitrations dealing with an employee’s dismissal or discipline will refer to the B. C. Labour Relations Board’s decision in
Wm. Scott &Co.
(Re), [1976] B.C.L.R.B.D. No. 98; [1977] 1 Can. LRBR 1; BCLRB Decision No. 46/76. The employer, a poultry processor, dismissed the employee for calling a newspaper and making untrue remarks about her employer. The arbitration board upheld the dismissal and the union appealed the decision to the B.C. Labour Relations Board.
Under Section 99 of the Code, the Board may set aside an arbitration decision on the grounds there was not a fair hearing or if the decision is “inconsistent with the principles expressed or implied in this Code or another Act dealing with labour relations”. This was the first time that the Board had to consider this provision, plus new provisions regarding dismissal and discipline, this decision explained how the legislation changed the common-law private contract of employment.
The B.C. Labour Relations Board eventually upheld the arbitration board decision, but in doing so set out three questions to be addressed by an arbitrator in a discharge case:
1. Has the employee given just and reasonable cause for some form of discipline by the employer?
2. If so, was the employer's decision to dismiss the employee an excessive response in all of the circumstances of the case?
3. If the arbitrator does consider discharge excessive, what alternative measure should be substituted as just and equitable?
The Board noted that the first question is essentially fact-driven – did the employee actually do what he or she is accused of? The second question is more complicated and the arbitrator must consider the following:
• How serious is the immediate offence of the employee which precipitated the discharge (for example, the contrast between theft and absenteeism)?
• Was the employee's conduct premeditated, or repetitive; or instead, was it a momentary and emotional aberration, perhaps provoked by someone else (for example, in a fight between two employees)?
• Does the employee have a record of long service with the employer in which he proved an able worker and enjoyed a relatively free disciplinary history?
• Has the employer attempted earlier and more moderate forms of corrective discipline of this employee which did not prove successful in solving the problem (for example, of persistent lateness or absenteeism)?
• Is the discharge of this individual employee in accord with the consistent policies of the employer or does it appear to single out this person for arbitrary and harsh treatment (an issue which seems to arise particularly in cases of discipline for wildcat strikes)?
( a more detailed summary of the
Wm. Scott decision is available under the heading
Summaries at the end of this post)
Following are five 2012 cases summarized in this post:
1.
International Forest Products Limited (Grand Forks Division) v United Steelworkers, Local 1-423 : An employee received a five-day suspension for inappropriate behaviour and threatening. He was a long service employee and married with three children. He had been suspended before for insubordinate behaviour. The employee apologized and the employer accepted the apology as genuine. The arbitrator applied the Wm. Scott principles and upheld the dismissal.
2.
Phelps Apartment Laundries Ltd. v Teamsters, Local Union No. 213 : The employee worked as a service technician, an on-the-road job. He was discharged when his driver’s licence was suspended. The collective agreement provided that an employee could be placed in other work when this happened, but this could happen only once. In this case, the employee’s driver’s licence was suspended twice, but each suspension related to the same incident. The arbitration board applied a balance of interest test and decided that dismissal was too severe a penalty.
3.
Gateway Casinos Entertainment Limited (Starlight Casino) v British Columbia Government and Services Employees Union :This arbitration dealt with two different employees. The first employee was suspended for being late returning to his shift. The employee had explained to the employer that he was not feeling well. The second employee was suspended three days for dishonesty. The arbitrator applied the Wm. Scott analysis and found that the employer did not have just and reasonable cause to discipline the either employee.
4.
International Union of Operating Engineers, Local 115 v Williams Machinery Limited Partnership: The manager asked all employees to do some clean-up of the work area. The manager noticed that the grievor was not doing clean-up and asked him to help the others. The grievor said “Why should I?” Matters escalated and the grievor was given a three-day suspension. The arbitrator upheld the suspension, finding that the grievor was given a clear direction by a person in authority, and that he understood the direction and repeatedly disobeyed it.
5.
Overwaitea Food Group v. United Food and Commercial Workers, Local 1518: The employee was terminated for inappropriate workplace conduct, including insubordinate comments and a threat to go home and get a gun and bring it into the store. She was a long-service employee but had a spotty discipline record, including other instances of insubordination and using profanity. The arbitrator applied the Wm. Scott analysis and upheld the termination.
Next post: more discipline and discharge arbitration summaries!
Case Summaries
Wm. Scott & Co. (Re)
Date: July 26, 1976
Vice-Chairs: P.C. Weiler, Chair, C.J. Alcott, A. MacDonaldrbitration Appealed: Discharge (application denied)
Background
The employer was a poultry-processing company. The grievor reacted to newspaper reports regarding a substantial backlog of birds awaiting slaughter, which referred to neither the union nor the processors wanting to have extra shifts. The grievor, an officer of the union, called the newspaper, apparently to question the accuracy of the report that the union did not want to work extra shifts. There followed a story in the newspaper where the grievor was reported as saying that employees were annoyed regarding the recent reports of poultry meat backup and that the employees had never been asked to work overtime to clear up the backlog. She also said that “You wouldn’t believe the inefficiencies at the plant” and that almost daily 20 to 35 women waste almost 20 minutes arguing over the use of a hose.
The grievor was dismissed by a letter dated September 4, 1975, which denounced her statements as unfounded – the statements were false and the grievor knew they were false. Further, the employer said the statements were “extremely detrimental”. The letter also referred to a continuing problem with the grievor (since her reinstatement in April 1975; she had earlier been dismissed but an arbitration board substituted the dismissal with one year of suspension) regarding her “constant interruption to our production process by interference in the work of other employees, presenting unfounded complaints and her unwillingness to comply with Management requests”.
The dismissal went to an arbitration board which found that her comments to the newspaper were unwarranted and that it was “malicious and vindictive for the grievor to use these occurrences [the water hose occurrences] which were the fault of employees as regular examples of Company inefficiency”. The board found she went out of her way to discredit her employer and found that she was not unjustly dismissed. The arbitration board also refused to exercise its discretion to substitute a lesser penalty. The union appealed the decision to the B.C. Labour Relations Board under s. 108 (“inconsistent with the principles expressed or implied in the Code”).
Analysis and Decision
The B.C. Labour Relations Board referred section 93(1) of the Labour Relations Code which requires every collective agreement to contain a provision [see the current section 84(1)]:
governing the dismissal or discipline of an employee bound by the agreement and that provision, or another provision, shall require that the employer have a just and reasonable cause for the dismissal or discipline of an employee;
As well, Section 98 confers the following authority to an arbitrator [see the current section 89]:
For the purposes set out in Section 92, an arbitration board has all the authority necessary to provide a final and conclusive settlement of a dispute arising under the provisions of a collective agreement, and, without limiting the generality of the foregoing, has authority
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(d) to determine that a dismissal or discipline is excessive in all the circumstances of the case and substitute such other measure as appears just and equitable,
The Board noted that this was the first application it had to deal with under the then Section 108 (see current section 99: whether the decision is “inconsistent with the principles expressed or implied in the Code”). The Board discussed how, prior to the sections in the Code dealing with dismissal and discipline, discharge of an employee was a pure matter of private contract law, which allowed the employer to dismiss an employee without notice for cause or with notice without cause. The Board discussed the implications of this legislation on the employment relationship in detail at paragraph 10 of the decision.
As a result of the legislative changes, the Board said that:
… arbitrators should pose three distinct questions in the typical discharge grievance. First, has the employee given just and reasonable cause for some form of discipline by the employer? If so, was the employer's decision to dismiss the employee an excessive response in all of the circumstances of the case? Finally, if the arbitrator does consider discharge excessive, what alternative measure should be substituted as just and equitable?
In regard to the first question, the Board said it normally involves a factual dispute – did the employee actually engage in the conduct which triggered the discharge. The second question is where the arbitrator must be especially searching of management’s decision to discharge. The arbitrator must consider:
(i) How serious is the immediate offence of the employee which precipitated the discharge (for example, the contrast between theft and absenteeism)?
(ii) Was the employee's conduct premeditated, or repetitive; or instead, was it a momentary and emotional aberration, perhaps provoked by someone else (for example, in a fight between two employees)?
(iii) Does the employee have a record of long service with the employer in which he proved an able worker and enjoyed a relatively free disciplinary history?
(iv) Has the employer attempted earlier and more moderate forms of corrective discipline of this employee which did not prove successful in solving the problem (for example, of persistent lateness or absenteeism)?
(v) Is the discharge of this individual employee in accord with the consistent policies of the employer or does it appear to single out this person for arbitrary and harsh treatment (an issue which seems to arise particularly in cases of discipline for wildcat strikes)?
The Board then considered these factors in regard to the grievor’s discharge. It did not disturb the arbitration board’s finding of fact about what the grievor said to the newspaper and that it was a vindictive effort to discredit the employer. Having found that the grievor did something that warranted discipline, then was the discharge excessive in all of the circumstances? The Board noted that the arbitration board believed that the grievor “remained recalcitrant in her attitude towards her employer”. As well, the arbitrators considered her previous disciplinary record (including a recent return from a one-year suspension) and believed that dismissal was required in the circumstances. The B.C. Labour Relations Board, while neither endorsing or disapproving of the arbitration board's findings, did not find that the decision was “inconsistent with the principles expressed or implied” in the Code or that there were any grounds for setting aside the award.
International Forest Products Limited (Grand Forks Division) v. United Steelworkers, Local 1-423, 2012 CanLII 24874 (BC LA)
Date: April 26, 2012 Arbitrator: John Kinzie
Grievance: Discipline – suspension without pay (grievance dismissed)
Background
The employer suspended the grievor without pay for five days because of a voice mail left for a supervisor which said:
"Hey Ken. I’m not sure who the fuck you think you are cutting my stuff and going through my personal stuff but ah maybe you should get off your ass and deliver my shit over here then. I’m still the posted oiler guy. I’m going to be going there at least 10 weeks a year and you pull this shit? Pretty fucking rude."
The employer also noted that, at a meeting, the grievor did not acknowledge his behaviour was inappropriate. He stated that the suspension pending investigation was ‘bullshit’ and, as he left the room and slammed the door, he said “Remember boys, this is a small town.” The employer noted that the grievor had been suspended three times before for insubordinate behaviour and for leaving work without authorization to pay hockey.
The employer noted that the grievor did apologize later; the employer accepted the apology as genuine and the grievor had promised to change his behaviour in the future. The grievor had worked for the employer since 1999 (approximately 12 years) and was married with three children.
The employer operates a combined sawmill and planer mill. This matter arose after, the grievor became an Oiler in the maintenance department in June 2010. He noticed that a clocker and a cupboard in the department were vacant, so he put locks on them and used them to store his personal tools and other items. In July 2011, the grievor was bumped from his oiler position and he returned to positions in the planer mill and sawmill. However, he did not empty his locker and cupboard, or remove the locks, because he believed he would return to the Oiler position when the incumbent went on holidays, etc.
The maintenance superintendent testified that an employee in the department asked if he could use the grievor’s locker. As well, employees wanted to use a spare battery which was in the grievor’s locker. Therefore, the maintenance superintendent asked the maintenance supervisor to ask the grievor to remove his lock from the locker, which he did. The lock was not removed the next day, so the maintenance supervisor asked the grievor to remove the locks again. The grievor said he would do it the next day (Friday).
The grievor had a different view of the content of these conversations and whether all of these conversations had occurred. He admitted that he might have understood that he was to remove the lock, but he did not think the matter was urgent. He also acknowledged that he might have told the maintenance supervisor that he would bring in his key the next day. In any event, the lock was not removed. On the following Monday the maintenance superintendent told the planer mill superintendent that he was going to cut the lock off if the grievor did not do it himself. The planer mill superintendent passed this information on to the grievor. The grievor said he did not understand why he was being asked to remove his lock as he thought he would still be relieving for the oiler position (he was also upset that another employee was being given relief work that the grievor thought he was entitled to). The planer mill superintendent said he would relay his concerns but that the maintenance superintendent wanted him to remove the lock or he would cut it off himself. The grievor threatened to call the police because this would be an invasion of his privacy.
The planer mill superintendent reported back to the maintenance superintendent who believed the grievor would not be removing the lock and later on in the week, the lock was removed. When the grievor found out, he left the message quoted above. When the message was replayed for the grievor, he immediately apologized and said that he was having anger issues that he was trying to deal with his family. The employer testified that, after what they viewed as a sincere apology, they decided to give the grievor a five-day suspension, instead of a termination.
Analysis and Decision
The arbitrator applied the William Scott & Company Ltd., BCLRB No. 46/76 principles. First, did the grievor’s conduct give the employer just and reasonable cause to impose some form of discipline? The arbitrator noted that the grievor knew that the maintenance superintendent wanted the lock removed so that it could be used by another employee actively working in the maintenance department and that the maintenance supervisor had talked to the grievor about it on three occasions. As well, the grievor was told that if he did not remove the lock, then it would be cut off. The arbitrator noted that this “would have conveyed to a reasonable person that [maintenance superintendent] was becoming impatient with the delay that was occurring in having the grievor remove his lock.”
The arbitrator did not accept the grievor’s explanation that he was waiting to hear back on his issues; as an experienced shop steward, he knows and understands, the ‘work now, grieve later’ principle.
Finally, when his lock was removed, he reacted with anger with a “clearly rude and inappropriate voice mail message”. He was contemptuous of the superintendent’s authority and was insubordinate in “a very serious way”. As well, the arbitrator took the grievor’s statement that “this is a small town” as an inappropriate threat.
Therefore, the answer to the first question is “yes”.
The second question to be addressed is whether the employer’s decision to impose a five-day suspension an excessive response in all the circumstances of the case. Although the arbitrator was of the opinion that the grievor’s record lacked clarity, in that sometimes he was being coached or that certain misconduct was unrelated to the misconduct in this case, he was of the view that the grievor’s misconduct in this case was very serious. The arbitrator did not accept that his actions were “spur of the moment”, stating:
The grievor was an angry man that day. But his responses indicate that he had been angry throughout this matter. He had his concerns and because of them he was not listening to what his supervisors were telling him. Then he reacted in an insubordinate and threatening way when they took the next natural step given his failure to respond. In my view, his reaction was deserving of serious discipline in and by itself.
His sincere apology on November 4, 2011, “resonated strongly” with [the employer]. I agree that it justified reducing the severity of the punishment for the grievor’s misconduct. However, I do not agree that it would justify reducing it to a written warning. A warning, in my view, would not be responsive to the seriousness of the grievor’s misconduct. Having considered all of the evidence and argument, I have concluded that a five day suspension was just and reasonable in all of the circumstances of the case.
Therefore, the arbitrator concluded that the suspension was not an excessive response in all of the circumstances of the case.
Phelps Apartment Laundries Ltd v Teamsters, Local Union No 213, 2012 CanLII 29878 (BC LA)
Date: May 28, 2012 Arbitrator: Mark J. Brown
Grievance: termination (grievance allowed)
Background
The grievor started with the employer in 1989 and is 62 years old. He worked as a service technician, an on-the-road job. The grievor’s driver’s licence was suspended for 90 days in December of 2009. The grievor was placed in the shop for the suspension period pursuant to the collective agreement which stated:
If any employee having at least two (2) years of seniority has their driver’s licence removed for a period not exceeding twenty-six (26) weeks, that employee shall be placed on other work, if available, which would not require the use of a driver’s licence, provided it did not create a layoff of another employee or be given a leave of absence until such time as their driver’s licence is returned.
For purposes of this provision, the Rate Retention Clause (Article 34) will be waived and the employee shall be paid at the rate applicable to any work performed.
This privilege will be granted to no more than one (1) employee at any time and no employees shall be entitled to avail themselves of it more than one time during their employment with the Company.
Then, in December 2010, the grievor’s licence was suspended again. He was put in the shop but there wasn’t a fulltime job opening. In deciding to dismiss the grievor, the employer considered his driving record, liability issues, the short notice the employer received about the suspension, reliability and lack of shop work. The grievor was dismissed on January 20, 2012.
The second suspension was related to the same incident as the first suspension, but the supervisor said he was not aware of this until the hearing.
The employer noted that a driver’s licence is a condition of employment and argued that the collective agreement presumes a single suspension, not multiple suspensions for one incident. If shop work is available, the employee gets that. It is a privilege granted once. There is no right to shop work or a leave of absence on a second suspension. Therefore, the employer argued that the parties negotiated protection for the first suspension and a deemed termination for the second suspension.
The union argued that the collective agreement gives the employee a right to be placed in the shop – the article in the collective agreement is not a deemed termination provision and the balance of interests supports reinstatement. As well, the two suspensions related to the same incident. Further, if the provision was a deemed termination clause, it would say so specifically. The employer placed the grievor in the shop for six weeks and cannot then change its mind and terminate his employment. The union also said that the employer terminated the grievor’s employment when the union refused to agree to a settlement that included a termination clause on 30 days’ notice or at age 65.
Analysis and Decision
The arbitrator discussed the balance of interest test in the case law discussed in
Re Bell Canada and C.W.C. (Shime), 24 L.A.C. (4th) 116 and then applied that to the facts in this case:
Turning to Article 6(f), it is clear that a valid driver’s licence is a condition of employment. If an employee with two years’ seniority loses their licence for a period not exceeding 26 weeks, the employee is placed in other work if available or placed on leave of absence until the driver’s licence is returned.
I agree with the Employer that the “privilege “is either being placed in other work or being placed on a leave of absence. The privilege in effect is not losing employment.
I also agree with the Employer that the provision is triggered by a suspension, or loss of licence. It is not triggered by an incident that may have multiple suspensions.
I agree with the Union that on subsequent suspensions, Article 6(f) is not a deemed termination clause. I am persuaded that for such a severe result, the Collective Agreement would require specific language. Article 6(f) provides a benefit to employees that in the event of a first suspension, the balance of interest test set out in the case law does not apply. The parties have negotiated an agreement that if the conditions set out in Article 6(f) are met (i.e. it is a first suspension, the employee has two years seniority, and the suspension is not more than 26 weeks) the employee is placed in other work or given a leave of absence. In the event of subsequent suspensions the balance of interest test set out in the case law continues to apply.
In the case at hand, [the grievor] had two violations on December 22, 2008: driving without care and a 24 hour prohibition – alcohol. He received the same two violations on December 4, 2009.
I agree with the Union that the December 26, 2009 to March 26, 2010 suspension was under Section 94.2 of the Motor Vehicle Act under the administrative provision. The second suspension was from December 6, 2011 to March 6, 2012 under Section 98 of the Motor Vehicle Act when Lutsenko plead or was found guilty of driving without due care and attention. He was not found guilty as charged with driving under the influence of alcohol. The two suspensions were related to the same incident in 2009. However, as I noted above this fact does not affect the interpretation ofArticle 6(f) as the provision is triggered by a suspension not an incident. [paras. 44-49]
In balancing the interests, the arbitrator considered the following:
• the employer runs a small operation which requires reliable attendance;
• the grievor cannot perform the his duties without a valid driver’s licence;
• the employer’s concern for safety and the grievor’s reckless behaviour and driving record weigh against continuation of the employment relationship;
• the grievor did not act responsibly by not informing the employer there was a risk of a further suspension and this affected the employer’s business;
• the grievor is a long service employee with no discipline on his record (23 years with this employer);
• he is 62 years old and has only worked in this industry;
• both suspensions relate to the same driving incident, so he has not been given an opportunity to improve;
• the employer used the grievor as a contractor for three days after the termination and this mitigates “somewhat” its concerns of safety, reckless behaviour and his driving record;
• the employer placed the grievor in the shop for one-half of the suspension period, taking a significant amount of time to consider its options.
The arbitrator concluded that the balance of interest was tipped slightly in favour of the grievor and termination was too severe a penalty. The reasonable course of action for the employer was to place him on a leave of absence from the date of the dismissal until his driver’s licence was restored. Then he shall be reinstated with full back pay and seniority.
Gateway Casinos & Entertainment Limited (Starlight Casino) v. British Columbia Government and Services Employees Union, 2012 CanLII 31309 (BC LA)
Date: June 6, 2012 Arbitrator: Mark J. Brown
Grievance: Two discipline grievances; both grievances allowed
1) Price Grievance
Background
The grievor arrived at work on time but was not feeling well and told his supervisor. When asked if he wanted to go home, he said he would continue his shift, as he knew the casino would be busy. However, the grievor felt worse and lost track of time during his break. When asked why he was late, he explained that he had not been feeling well. At the end of his shift, the grievor went to the hospital and was treated for his ailment. He was advised to stay indoors and not go to work for three days. The grievor immediately advised the employer of the situation. The grievor was suspended for one day for being late returning to his shift and because of his previous discipline history.
Analysis and Decision
The arbitrator applied the
Wm. Scott analysis and found that the employer did not have just and reasonable cause to discipline the grievor. The arbitrator concluded that he was not intentionally malingering in order to knowingly take a longer break. He was honest about why he was late returning from his break and there was no doubt that he was ill.
2) Chang Grievance
Background
The grievor was a casual employee who provided an availability form which was used, along with other employee’s availability forms, to create a schedule. A schedule was posted on April 23, 2011, and the grievor felt that he was not scheduled for all of the shifts he would be entitled to. He had a meeting with the marketing manager. He showed him an availability form dated May 6, 2011. The marketing manager concluded that there were some shifts the grievor should have worked and asked a supervisor to investigate.
The supervisor investigated and reported that none of the supervisors had received the May 6, 2001 availability form and the schedule was posted four weeks earlier and was based on the grievor’s January 5, 2011 availability form. The employer concluded that the grievor had intentionally misled the marketing manager. He was given a three-day suspension for dishonesty.
The grievor was of the view that the May 6, 2011 availability form was not much different from the earlier form, and that he would have been entitled to extra work based on the earlier form as well.
Analysis and Decision
The arbitrator applied the
Wm. Scott analysis and found that the employer did not have just and reasonable cause to discipline the grievor. After reviewing the circumstances, the arbitrator was not satisfied that the grievor was trying to mislead the marketing manager or be dishonest. The arbitrator concluded that he used the May 6th form for comparison because he did not have the January 5th form in his possession although he thought they were about the same. The arbitrator said:
… it could have been easily cleared up by the Employer advising Chang that the January 5th form was different and the May 6th form would result in more hours in the future….
Instead the Employer assumed that Chang was being dishonest. However, Chang could not have claimed more hours for the May 1 to 28 schedule based on the May 6 form as it was dated after the schedule was produced. There was no benefit to Chang to try and mislead the Employer using a form dated after the schedule was produced as it would not have been used to produce the schedule in any event. The May 6th form would be used for future schedules. If Chang was attempting to mislead the Employer and gain a benefit for the May 1 to 28 schedule, an updated form would have to be dated prior to April 23.
International Union of Operating Engineers, Local 115 v Williams Machinery Limited Partnership, 2012 CanLII 51425 (BC LA)
Date: July 3, 2012 Arbitrator: James E. Dorsey, Q.C.
Grievance: three day suspension for insubordination (grievance dismissed)
Background
The grievor, a ten-year employee, was given a three-day suspension on January 9, 2012. His manager noted that he had talked to the grievor about complaints made against him. He had received a written warning for failing to call-in or report to work. As well, the manager made a note on his file about complaints from two other co-workers (unauthorized smoke breaks, smoking inside the equipment, complaining about the company and getting overly frustrated). The manager had been reminded on other occasions to focus on work instead of visiting other employees.
On January 9, 2012, at the start of business, his manager had noted that the mechanic’s area was messy. He went to the lunch room where the employees were preparing for their shift and told them to spend the first 15 to 20 minutes cleaning up the work area. His instructions were clear and were not questioned or challenged. The grievor testified that he put down an oil absorber and started putting away tools that he had left outside his toolbox the previous workday.
The manager came to the work site and noted that the other employees were doing clean-up work; he noted that the grievor was at his work bench and not involved in the general clean-up. The manager approached the grievor and asked him to help with the clean-up and the grievor replied “Why should I?” in a manner his manager characterized as dismissive. He repeated his instructions and the grievor turned away. The manager then asked him to come to his office.
The grievor said he was putting his tools away when his manager approached him and that his “Why should I?” comment was a friendly jest.
When they went to his office, the manager told the grievor he needed him to participate in the clean-up. He testified that the grievor said it was not his mess and not his problem. The grievor denies saying this. The manager then said he needed him to clean up and if he could not, he could go home. The grievor left and the manager assumed he was going to assist the other employees with the clean-up.
The grievor recalled the meeting differently, but when he noticed his manager getting upset, he pulled out a cigarette and said “let’s go outside and have a talk”. This is when the manager told the grievor that he talked too much, needed training and should clean up or go home. The grievor said he returned to work bench and when the manager asked him to clean up some oil he did it before he started his work.
The manager had a different recollection: he said he went to the shop floor where he saw other employees cleaning up and the grievor was at the door pulling out a cigarette. The manager called him and told him he needed to help with the clean-up. The grievor returned to his work bench and started to clean up that area.
The manager went to office and thought about what happened. After consulting with his manager, they decided to discipline the grievor. Later in the day, they gave the grievor a letter imposing a three-day suspension.
Analysis and Decision
The arbitrator appeared to accept the employer’s submission that it did not over-react or impose excessive discipline in all of the circumstances and that the approach to take is that of “restrained arbitral scrutiny” as explained in
West Fraser Mills Ltd. [2011] B.C.C.A.A.A. No. 113 (Hall):
In all of the circumstances, we are not inclined to interfere with the penalty which the employer has chosen. As a general rule, we do not believe that it is desirable for a board of arbitration to attempt to "fine tune" a managerial decision respecting discipline which is not in itself unreasonable or excessive. To do otherwise would merely encourage costly litigation as grievors, hoping for perhaps minor gains (whatever the over-all cost) press their bargaining agents to carry every discipline matter forward to arbitration. Likewise, employers might be encouraged to impose more extreme sanctions at the outset, on the expectation that an arbitrator inclined to tinker might be disposed to" split the difference" and substitute something within the general realm that management might otherwise have chosen in the first place. It is one thing for a union and employer, in the grievance procedure, to haggle about the penalty, "saw it off", "split the difference", or bargain a concession in anticipation of future considerations. It is quite another for an arbitrator to hold, on the basis of objective evidence and reasoned consideration, that an employer's disciplinary response is unwarranted and should be modified. This is not to say that arbitrators should shrink from modifying a penalty which is clearly inappropriate in the circumstances or excessive when measured against the norms of the industrial community. But this requires more than some "gut feeling" or vague impression that the arbitrator, standing in the shoes of management, might have done something somewhat different -- not least because the litigation process provides, at best, only an imperfect appreciation of the enterprise as a whole and the human and business relationships which must somehow be fitted into a legal mold.
Accordingly, while a three-week suspension may not be the penalty which this board of arbitration would have chosen, we are satisfied that it is clearly within the range of reasonable employer responses to the facts at hand…
The arbitrator found that the grievor was given a clear direction by a person in authority. He understood the direction and repeatedly disobeyed it. The arbitrator believed that the grievor’s testimony was an “effort by Mr. Li to deflect, diminish and deny responsibility for his actions”. The arbitrator concluded:
On January 9th, Mr. Li behaved with insolence (disrespect, cheekiness, rudeness) and insubordination. His behaviour was disrespectful toward both the technician team and Mr. Sevrens. It exhibited an element of setting himself apart and not subject to rules applicable to all others. It was open and openly defiant. The unstated message from him was that he was not going to work with his fellow technicians; he was not going to clean up what others left behind; and he was not going to follow Mr. Sevrens’ direction.
This behaviour was not because of any personal hardship associated with having been selected for special attention or assigned a particularly distasteful task. It did not arise from a hardship or belief he had some right to not follow the direction. It was a product of his personal attitude. He has not made any apology or expressed any recognition of his defiance of direction.
The employer’s choice of discipline was severe enough to capture Mr. Li’s attention and to forewarn where continued behaviour by Mr. Li expressing his attitude will likely lead. As the union characterized it, placing him with one foot at the exit door was intended to correct any further behavioural manifestations of his attitude. It was a true warning and, in the circumstances, not an overly onerous hardship for him.
I find there was just and reasonable cause for discipline and a three-day suspension, in all of the circumstances, was a measure of discipline within a reasonable range of disciplinary responses. The employer did not ignore something relevant or consider something irrelevant; act on a misunderstanding or improper motive; or otherwise affronted fairness. The grievance is dismissed.
