Tuesday, January 31, 2012

Insubordination, profanity, unsafe conduct and workplace negligence and Post Traumatic Stress Disorder--some recent BC arbitration awards on discipline

The following are based on summaries provided by Diane MacLean.


1. Arbitrator John Hall upheld a three day suspension for insubordination in West Fraser Mills Ltd v. Unites Steel Workers [2011] BCCAAA No. 133.  The decision appears not to have been posted on CanLii but is available on Quicklaw.  The LRB recently dismissed the union's application for review and   that ruling  is available free. 

The decision contains a good discussion on what must be proved in order to establish that a refusal to follow an order amounts to insubordination.

There are three essential components:
1. a clear order understood by the grievor;
2. the order must be given by a person in authority and,
3. the order must be disobeyed.

In this case the grievor refused to follow two direct orders given to him by the charge hand during his shift in a saw mill.  The refusal was also accompanied by profanity directed at the charge hand and in a meeting with the supervisor.

The union argued that the charge hand was not a "person in authority" based on the collective agreement definition  that set out that a charge hand "can exercise job direction in his work area, all of which shall be relayed to him by supervision."  The arbitrator ruled that the  definition should not be taken literally  and that the clause incorporated a more general delegation of responsibility  that included authority to direct when employees will take their lunch breaks. 

On the matter of the use of profanity, the arbitrator concurred with evolving jurisprudence that rejects the argument that profanity shouldn't attract discipline because it happens to be  "common shop talk" in a particular workplace. 

The arbitrator found that the discipline was not excessive in the circumstances.

2.  In Teck Coal Ltd (Line Creek Operations) v. IUOE Local 115    Arbitrator Mark Brown upheld the dismissal of a three year employee who was involved in an unprovoked altercation with a co-worker.  The grievor had a previous disciplinary record for inappropriate behaviour and insubordination.

Unsafe conduct, workplace negligence

3. In Richmond Steel Recycling v. Ironworkers Local 712 [2011] BCCAAA No. 132 Arbitrator Joan McEwen upheld the termination of an employee who failed to comply with the employer's safety policy requiring any employee working more than six feet off the ground to be "tied off".  The grievor was seen standing on a conveyor belt some 20 feet above a concrete surface without being secured.

The union argued that although some form of discipline was warranted, discharge was excessive because there were mitigating circumstances.  The union alleged that the policy was unevenly applied and that the employer had discriminated against the grievor based on his age and ethnicity.  The arbitrator rejected these arguments.  The arbitrator also noted that the grievor did not take responsibility for his conduct thus undercutting the argument that he was amenable to the principles of corrective discipline.

4. In Vitalaire Canada Inc. v. Teamsters Local 213   Arbitrator David McPhillips upheld the termination of a short term employee whose negligence in parking the company truck caused it to roll down a hill and push a parked car into a fence and a shed.  The arbitrator did not believe the grievor's evidence that he had engaged the air brakes and turned the wheels appropriately.  The arbitrator found that termination was not excessive given that the grievor had been employed for one and half years, that his previous disciplinary record included carelessnes about safety and failure to accept responsibility, and that the consequences of his misconduct were serious.  In addition the arbitrator noted that the grievor had not acknowledged any responsibility for the incident.

Non-culpable behaviour and PSTD (Post Traumatic Stress Disorder)

5.  Arbitrator Emily Burke's decision in Government of BC (Riverview Hospital) v. BCNU issued on December 8, 2011 is worth a good read.  The grievor was a nurse who suffered Post Traumatic Stress Disorder as a result of serving in Afghanistan.  While taking five psychiatric patients from Riverview on an outing in a van, the grievor dealt with one of the patients inappropriately.  The patient became severely disruptive and rather than seeking assistance, the grievor stopped the vehicle, told the patient to get out and left the patient there.   
The Arbitrator concluded that while in the normal course this reckless conduct would warrant discipline, the medical evidence established that the circumstances caused the "grievor to lose significant capacity for rational decision making and ability abiliy to perceive other options."  As a result there was no cause for discipline and the termination was overturned.