Canadian Employment Law Today

November 27, 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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November 27, 2013 Insubordination or representation? THIS INSTALMENT of you make the call features a shop steward who was suspended after a heated argument with management. Laurie Ostrowsky was a journeyperson millwright and industrial mechanic at the Saskatoon, Sask., Wastewater Treatment Plant. A city employee since 1996, Ostrowsky was a shop steward for the union for six years. In March 2010, the plant maintenance manager became aware of a rumour that employees planned to not co-operate with a new foreman. One morning, the maintenance department held a toolbox 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. GST #897176350 8 How would you handle this case? Read the facts and see if the judge agrees meeting to discuss the duties of the day. The manager came into the meeting unannounced and said he was there to investigate the rumour regarding the new foreman. He stated he wasn't "finger pointing" but wanted to avoid a negative environment. Ostrowsky took issue with the manager accusing the maintenance group of being behind the rumour. She began yelling at the manager and cut him off when he tried to respond. The manager told her if she continued to be disrespectful he would ask her to leave the meeting. Ostrowsky said she wouldn't leave because she needed to stay and "stick up for the guys." Ostrowsky didn't state she was a shop steward, but the manager knew she was one. Eventually, things cooled down, but afterwards the manager filed a report to his superior. The city conducted an investigation in which other employees at the toolbox meeting were interviewed. One said Ostrowsky used profanity, though it was common to swear in that workplace. Two other employees corroborated the manager's report and three others didn't describe it the same way, but said the incident was "intense and heated." Many didn't recall Ostrowsky swearing. It turned out two other employees had become involved and used profanity. Ostrowsky denied she swore or yelled at the manger, though she acknowledged she raised her voice and interrupted him because "he was saying the same thing over and over again." She said she was standing up for the group because it was her duty as a shop steward. Following the investigation, the other two employees received written reprimands for their participation in the incident. However, Ostrowsky's conduct was considered more serious because she initiated it, incited the others and refused to leave. Though Ostrowsky was a long-term employee with no previous discipline, management considered her conduct to be insubordinate. It didn't consider her to be acting in her role as a shop steward because it wasn't the time or place to bring her concerns to management. Ostrowsky was suspended for three days without pay for breaching the city's Respectful Workplace Policy. You make the call K Was Ostrowsky's conduct insubordinate and deserving of a suspension? OR K Was a suspension too much under the circumstances? IF YOU SAID a suspension was too much in the circumstances, you're right. The board found the city had insufficient proof that Ostrwosky's conduct warranted serious discipline. Though there was a heated incident, not all reports said she swore. In addition, the accounts didn't indicate Ostrowsky was actually asked to leave — the manager's report said he told her he would have to ask her to leave if she continued, but he didn't — so there was no direct order defied to make her insubordinate. The board found both sides likely raised their voices. The board also found Ostrowsky had reason to act in her role as a shop steward because of the accusations against the maintenance department workers. This gave her some immunity from discipline for insubordination, said the board. "We are left with a situation where there was a heated exchange between a shop steward and a manager, where voices were raised and the shop steward clearly challenged the authority of the manager to act in the manner he did," said the board. The board found the city didn't have just cause to discipline Ostrowsky and set aside the suspension with compensation for loss of pay. See Saskatoon (City) and CUPE, Local 47 (Ostrowsky), Re, 2012 CarswellSask 636 (Sask. Arb. Bd.). Published by Canadian HR Reporter, a Thomson Reuters business 2013 CELT

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