Sunday, November 25, 2012

Termination overturned where employee disciplined more harshly than other employee in similar circumstances

(this summary provided by Diane MacLean)

 Asco Aerospace Canada Ltd v. International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Shopmen’s Local No. 712, 2012 CanLII 5488 (BC LA)

Date: January 27, 2012 Arbitrator: Ronald S. Keras

Grievance: Termination (grievance allowed)



The grievor, a machinist, had been working for the employer and its predecessor company since 1989. The employer terminated his employment on November 2, 2011 due to “work quality issues”. This occurred, according to the letter of termination “after multiple warnings, written and verbal” and three events in the month of October. These events had to do with making serious errors and not letting his supervisor know right away. At the hearing, the employer’s witnesses testified that they had lost trust and faith in the grievor. The employer also provided two performance reviews which showed above average performance.

The grievor testified that he did not try to hide his mistakes and that he was not asked for his side of the story at the termination meeting. He said he always talked to his partner but was not aware that he had to talk to his supervisor over every little issue.

The employer argued:

… with the following facts: three incidents of discrepancies, the Employer having spoken to the Grievor three months earlier, the Grievor being aware of heightened concerns about safety and quality, the Grievor not recording problems, the Grievor giving implausible theories and the Grievor minimizing discrepancies, that the Employer had lost their faith in the Grievor. The Employer, bargaining unit, and non-bargaining unit employees have lost their faith in the Grievor as the Grievor is unable or unwilling to address these issues. The Employer described the Grievor’s testimony as self-serving; that he said he was happy with the new house rules, but that it is or was clear that he chose not to follow the rules and not to report deficiencies to his Shift Leader or management.

The Employer pointed to case law concerning repeated incidents of inattention; serious repetitive errors; skilled job quality issues; skilled employees held to a higher standard; case law about deliberate concealment of discrepancies; discipline based on a case by case inquiry; and a case involving reinstatement to a different position.

In its arguments, the union criticized the employer’s investigation process which was described as “a series of incorrect assumptions, a case based on erroneous assumptions with the most serious discipline”. As well, a “minimum level of fairness” required giving the grievor a chance to explain himself. The union also compared discipline other employees received for similar infractions and argued that the grievor had been singled out and treated differently.

Analysis and Decision

The arbitrator referred to the three questions set out in the Re Wm. Scott & Co. and Canadian and Allied Workers Union, Local P-162, [1977] 1 C.L.R.B.C. 1: Are there grounds for discipline? Is discharge appropriate in the circumstances? If not, what is the appropriate disciplinary response?

The answer to the first question was “yes”; there was cause for some discipline. The real issue is whether discharge was appropriate in the circumstances. The arbitrator agreed with other arbitrators that the progressive discipline approach is “dependent upon the nature and seriousness of the breach, the culpability of the employee and whether or not that employee had shown remorse or responsibility for their actions”. Was the grievor’s culpability greater than other employees?

In this case, the union argued that other another employee received written warnings and a suspension for the same kinds of things that the grievor was reported to have done. However, the employer argued that the grievor had four incidents in the space of four months and tried to hide them and this made the situation different and justified termination.

The union had provided an example of another employee with a record of warnings and a suspension, who tried to fix a problem without telling anyone. The arbitrator stated:

In the instant case [the grievor] was aware of the House Rules and the emphasis on procedures, however he was shocked at his termination meeting as termination was quite unexpected. In this case "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" (Wm. Scott). In my view the treatment of [the other employee] was more in line with the “consistent policies of the Employer”.

The arbitrator considered cases where employees had concealed defects where the results could have been catastrophic, and where a dismissal would be upheld. However, in this case, although the grievor did not follow the proper procedure (a serious offence), he did not completely conceal discrepancies in that he told his co-worker on the afternoon shift. The arbitrator also noted that the grievor’s record could not be described as abysmal – “it was similar to a number of other employees and better than some.” It also included two above average performance reviews. As well, the evidence did not show that the grievor was aware that another ‘quality’ issue could lead to his dismissal.

The arbitrator then considered whether the employment relationship was capable of restoration and stated:

There comes a point, with some employees, where the inescapable conclusion is that the employment relationship cannot be restored. In the Cominco case (supra), the Grievor had been disciplined six times, including a thirty-day suspension. That relationship was at an end. In the current case the Grievor, prior to discharge, had a record which was quite similar to a number of other employees. There was no evidence that he had ever been suspended. Some other employees had been suspended. He had a number of warnings, verbal and written, which were stale-dated, very similar to other employees. He had a current August 4th, 2011 - Written Instruction Warning Notice. That was the only live discipline on file at the time of his termination.

The problem for the employer’s case was in three primary areas:

1. A careful review of the employer’s history shows limited discipline for employee discrepancies. There was a suspension and warnings, but there did not appear to be any other dismissals.

2. Progressive discipline principles proceed on the theory that if employees are warned of behaviour and performance issues, they will have an opportunity to improve. Here the grievor was not given an opportunity to correct his work performance or explain his actions.

3. The employer reached some conclusions without a factual basis for them.

The arbitrator reviewed the events one more time and concluded that there was some level of concealment in the grievor’s conduct. The arbitrator concluded:

On a careful review of the evidence, the testimony and the submissions of counsel, the Employer’s case cannot succeed. The Employer arrived at a decision to terminate the Grievor’s employment in which some considerations were based on conclusions that were simply not correct. The Employer’s sanction of termination was not consistent with sanctions for other employees involved in similar conduct.

In the result, I find that the sanction of termination is excessive in the particular circumstances of this case. In cases such as this the appropriate corrective action program is one of progressive discipline for reasons well stated by the Arbitrators referred to in the preceding case law. One particular purpose of the progressive approach is so that an employee knows and understands the eventual consequence of not improving behaviour or, in this case, not improving work quality and following procedures. In this case, termination is not “in accord with the consistent policies of the employer” (Wm. Scott).

The arbitrator ordered that the grievor be reinstated with no loss of seniority and the termination be replaced with a ten-day suspension. Further the arbitrator stated:

[The grievor] will be responsible for rebuilding the trust in the employment relationship primarily by respecting the authority of Shift Leaders and management in a concrete way, such as being vigilant in following procedures and restricting his own judgment to permitted judgments and in particular, involving Shift Leaders in any decision(s) associated with a discrepancy or a suspected discrepancy.

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