An Ontario arbitrator has upheld the termination of an employee who displayed unsafe behaviour in the workplace just days after returning from a suspension for making a threat and lying about it.
A radio crane operator for National Steel Car, a builder of freight cars in Hamilton, Ont., was dismissed on June 20, 2011, for threatening a co-worker and not being honest during the investigation into the incident. During an altercation with a co-worker, the crane operator had threatened to bring in some “ammo,” a violation of the employer’s workplace violence policy. When National Steel Car investigated, the crane operator denied making the threat and lied in his testimony during the arbitration hearing when the union grieved the termination. This violated another employer rule against dishonesty.
Despite the dishonesty, an arbitrator reinstated the crane operator on Dec. 2, 2011, and substituted a suspension without pay from the time of his dismissal — 128 days. The reinstatement was conditional upon future good behaviour, and the arbitrator included a last chance stipulation — any instance of workplace violence by the crane operator over the next two years would result in instant termination of employment.
When the crane operator returned to work, he received refresher training on safety procedures, such as the proper position of the spreader bar, a tool used to position the chains while lifting materials with a crane, and the safety risks if it wasn’t done properly and caused the load to fall.
Over the next few days, the crane operator had a dispute with a supervisor over lifting boxes that didn’t have load capacity limits on them. Another employee told him the company was trying to build a case against him and the crane operator complained of harassment. During a meeting about the issue, the crane operator was displeased, so he got up and walked out. The supervisor considered this insubordination and wrote up a report.
Later that same day, the supervisor observed the crane operator lifting a load with an uneven spreader bar. He stopped the operator, who said the bar wasn’t that uneven. At a meeting on Dec. 7, the crane operator denied using an uneven spreader bar and the supervisor was mistaken. He also said the supervisor may have been annoyed at him for complaining about the lack of load capacity limits on boxes and other safety issues.
National Steel Car terminated the crane operator’s employment for the insubordination, unsafe behaviour and dishonesty about it, which it considered culminating incidents after his past misconduct.
After the union grieved this dismissal as well, an arbitrator ruled in favour of the employer this time, finding the crane operator didn’t learn from his past discipline and was likely to repeat his misconduct. The crane operator’s lack of remorse, continued dishonesty and flouting of the company’s safety rules made it “unlikely that the (crane operator) would be a productive and trustworthy employee of the employer in the future” and, as a result, termination was appropriate.
“The relationship of trust that is essential between an employee and an employer has been irreparably damaged by the (crane operator), thus rendering his reinstatement untenable,” said the arbitrator. “Earlier attempts at corrective action, including his conditional reinstatement, have not been successful in impressing upon (him) the need to be a productive and trustworthy employee.”
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