Canadian Employment Law Today

September 4, 2013

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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CELT Sept 4 2013:celt 467.qxd 13-09-13 10:59 AM Page 12 September 4, 2013 New policy rubs safety co-chair the wrong way THIS INSTALMENT of You Make the Call features a union steward who acted out during an employee meeting. Harbinder Hara was a journeyman welder at a mill operated by Tolko Industries, a manufacturer of forest products based in Vernon, B.C. Hara was active in union affairs, eventually becoming a steward. Over his 29 years with Tolko, Hara had two instances of discipline on his record — a 1989 verbal warning and a 2010 written warning. Tolko developed a drug and alcohol policy and included the possibility in its collective agreement, which stated any Published biweekly 22 times a year Subscription rate: $299 per year Customer Service Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: Carswell.customerrelations@ Website: Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Publisher: John Hobel Managing Editor: Todd Humber Editor: Jeffrey R. Smith E-mail: ©2013 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. We acknowledge the financial support of the Government of Canada, through the Publications Assistance Program (PAP), toward our mailing costs. GT #897176350 Publications Mail Registration No. 40065782 12 ter was investigated. Hara was later suspended one day for insubordination. You make the call How would you handle this case? Read the facts and see if the judge agrees such policy must be agreed to by the union. In April 2013, Tolko scheduled employee meetings to introduce the policy and answer employee questions. On April 2, Hara attended a meeting with 23 other employees that was headed by the maintenance superintendent and maintenance supervisor. Though he was co-chair of the health and safety committee, Hara hadn't been given any information on the policy. After the policy was handed out, employees were given the opportunity to ask questions. The supervisors were able to answer some of the questions and said they would find out about the ones they didn't and get back to them. The lack of certain answers caused frustration among some of the employees. After about 20 minutes of questions, Hara asked the supervisor why the safety committee had not been involved in the implementation of the policy. Before the supervisor could answer, Hara continued speaking in a raised voice and told the superintendent it shouldn't be done that way. They felt the question wasn't appropriate for the meeting because it was related to collective agreement negotiations and not information sharing for employees. The superintendent tried to calm Hara down and said they could continue the discussion later, but Hara continued in a louder voice. When told to stop, Hara stood up, leaned towards the superintendent and slammed his papers on the table, saying "this is bulls—t." The superintendent told Hara they could discuss it in his office and Hara left. The superintendent and supervisor went to the superintendent's office but Hara wasn't there. The supervisor eventually found Hara in the welding shop and told him to go home while the mat- ✓ ❑ Was a suspension too much for actions that related to Hara's role with the union and his frustration? OR ✓ ❑ Were Hara's actions insubordinate and deserving of a suspension? IF YOU SAID Hara didn't deserve a suspension, you're right. The arbitrator found Hara became frustrated because he had not been consulted about the policy before it was introduced, even though he was co-chair of the safety committee. Hara remained calm throughout the meeting and his question was meant to point out to the employees that Tolko had excluded the committee, said the arbitrator. When they didn't respond to the question or provide an explanation for this exclusion, Hara became more frustrated. Eventually, his frustration boiled over, said the arbitrator. However, the arbitrator found Hara's continuing to ask the question in a louder voice after being told to stop was insubordinate behaviour, since the meeting was not an employer-union meeting but rather was an information meeting for employees. Hara could not use his union role as an excuse for his conduct, said the arbitrator. On the other hand, the superintendent's reference to discussing it in his office came off as more of a suggestion if Hara wanted to discuss things further, not an order. Hara didn't want to discuss it any longer and chose not to go to the office, said the arbitrator. The arbitrator found Hara's conduct in the meeting amounted to insubordination, but his long term of service with Tolko with a fairly clean record mitigated the "emotional impulse" that led to his misconduct in the meeting. Tolko was ordered to rescind the suspension, compensate Harra for his lost pay and substitute a written warning. See Tolko Industries Ltd. and USW, Local 1-417, Re, 2013 CarswellBC 1945 (B.C. Arb.). Published by Canadian HR Reporter, a Thomson Reuters business 2013 CELT

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