Canadian Employment Law Today

Canadian Employment Law Today | 3 Canadian HR Reporter, a Thomson Reuters business 2015 Cases and Trends End of the line for insubordinate worker Employee claimed dismissal was related to his union work, but insubordinate comments and behaviour were not related By JEFFrEy r. SmiTh An OnTAriO employer had just cause to terminate an employee who was a union chair for aggressive and insubordinate be- haviour, an arbitrator has ruled. JD Norman Industries operates an auto parts plant in Windsor, Ont, which it had purchased in 2013 from previous owner. Greg Brownlie was a machine operator in the plant for 15 years. In November 2012, Brownlie was dis- missed for acting aggressively and insub- ordinately towards the plant's production manager. However, the dismissal was over- turned by an arbitrator and a three-week suspension was substituted. In the summer of 2013, Brownlie was sus- pended for three days for calling in sick for the same time period as a denied vacation request, avoiding the company's attempts to contact him and failing to provide proper medical documentation to verify his illness. He also demonstrated an "aggressive and de- fiant attitude" towards management. With this suspension, JD Norman gave Brownlie a final warning that any failure to "conduct yourself in a respectful fashion" and follow company rules would result in "immediate dismissal." On Jan. 28, 2013, Brownlie and the pro- duction manager planned to meet before the beginning of the shift to discuss a safety issue on the production line Brownlie had brought up. However, the production man- ager was running late and couldn't make the meeting. He apologized to Brownlie and suggested they meet later. Worker unhappy with resolution of safety complaint at day, Brownlie was put on forklift duty because the regular driver was absent. While he was moving bins on the loading dock, the production manager sent a supervisor to in- form Brownlie of certain tasks that needed to be done. When the supervisor arrived at the loading dock, he got close to the forklift and leaned on it to talk to Brownlie. Brown- lie said he was startled and expressed his concern to the manager that it was a safety issue. e manager investigated but found no safety concerns. Later on, Brownlie was talking to anoth- er employee who was leaning against the forklift. According to the other employee, Brownlie referred to the supervisor as a "f---ing idiot" in relation to the earlier inci- dent. When the manager came by to report his findings on the incident, he asked why it was fine for the other employee to lean on the forklift but not the supervisor, sug- gesting Brownlie was picking and choosing his fights. Brownlie got upset that his safety concern had been dismissed, started yelling and said the manager was harassing him. e manager testified Brownlie kept "going on" until he was told to stop because there was work to do. Afterwards, the supervisor apologized to Brownlie for startling him and, after Brown- lie "ranted" a bit about safety, said consid- ered the matter settled. Brownlie said he would get the manager fired, but the super- visor felt he was just blowing off steam. During a break, the manager found Brownlie alone in the break room writing on grievance forms. Brownlie was a union chair and it was normal practice to ask a supervi- sor for time to deal with grievances and time was always given on Fridays. Brownlie had not asked for time and it wasn't Friday, so the manager told him to get back to work be- cause it was busy in the plant and Brownlie was needed. As the manager left the room, Brownlie followed him and started swear- ing and yelling at him while standing close to him. e manager reported the incident to HR, saying he felt threatened and thought Brownlie would have hit him if he hadn't walked away. Brownlie also contacted HR, saying there was a safety issue in the plant that had not been addressed appropriately. Brownlie was suspended with pay pending an investigation. e investigation involved interviews with the production manager, supervisor, Brownlie, the co-worker to whom Brownlie made the "idiot" comment — who said af- terwards Brownlie was angry and smashing into bins — and an employee who witnessed the argument outside the break room. Brownlie insisted the supervisor came too close to the forklift and it was a safety vi- olation. He denied calling him an idiot, but rather said he was incompetent. When the other employee was speaking with him, he saw him, stopped, and turned off the fork- lift, so it wasn't a similar situation, he said. He initially denied the break room incident, but after it was described to him he agreed it had happened, though he denied yelling. He also said he was only making notes on the grievances so he didn't forget anything and the manager was yelling at him to get back to work. e company determined that Brownlie "acted in an angry, aggressive and insubor- dinate manner toward the production man- ager" as well as the supervisor. Since he had a history of similar behaviour for which he had been disciplined, termination of em- ployment was decided as the appropriate option. Brownlie was terminated on Feb. 5, 2013. Union affiliation was factor in dismissal: Worker Brownlie and the union grieved the termina- tion, claiming he was unjustly fired for raising genuine safety concerns and for acting in his role as a union chair. Brownlie also claimed the manager was a bully and was known for acting aggressive towards employees. e arbitrator found Brownlie's comment about the supervisor was a comment rele- vant to the operation of the workplace and the performance of the supervisor. Employ- ees are entitled to make such comments and they aren't necessarily insubordinate, said the arbitrator. ough Brownlie used a pro- fanity in the comment, the arbitrator found the plant was a place where people used such words as "all-purpose words" wheth- er angry or not. Overall, the "f---ing idiot" comment was not seen as insubordinate. However the arbitrator agreed Brownlie's comment to the manager that he would have him fired was a challenge to the manager's authority and therefore insubordinate, war- ranting discipline. As for the altercation at the break room, the arbitrator was concerned more with Brownlie's behaviour than what he said. Regardless of what he said, Brownlie acted aggressively towards the manager, yelling at him and standing close to him to the point where the manager felt threatened. is constituted inappropriate conduct justify- ing discipline, said the arbitrator. e arbitrator found most of Brownlie's actions were not associated with union business. His safety complaint regarding the arGuMeNt on page 7 » The arbitrator found most of Brownlie's actions were not associated with union business.

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