A New Brunswick employer was justified in firing a worker who swore at a supervisor during a disciplinary meeting after repeatedly being absent from work because he claimed to be lactose intolerant.
Unifor filed a grievance against Kent Homes, a division of J.D. Irving Ltd., after the worker — ZV — was terminated for cause.
The union contested ZV’s dismissal for allegedly violating the company’s Safe and Respectful Workplace Policy, claiming his innocence and seeking full redress. The company’s stance was grounded in ZV’s repeated policy violations, warranting his dismissal in line with the collective agreement.
Attendance issues
Kent Homes, a manufacturer of prefabricated wooden structures with approximately 148 employees, follows a strict assembly-line system. The company’s focus on efficiency and productivity is often hampered by employee absenteeism, it said.
In addressing absenteeism, Kent Homes established an Attendance Awareness Program (AAP), allowing a 4% rate of absenteeism, excluding certain absences and offering support through an Employee Assistance Program (EAP) for personal issues.
ZV’s disciplinary record revealed consistent unexcused absences, leading to a series of warnings and suspensions. While ZV attributed his absences to lactose intolerance this explanation was not supported with evidence at the hearing.
He received his first employee disciplinary report on June 17, 2022, when his then supervisor noted his absence level had risen above the threshold to 5.3%.
A second warning was issued on Sept. 19, 2022, when his absence level hit 6.9%.
On Nov. 23, 2022, he received a third warning, noting it had risen to 8.2%. It was accompanied by a three-day suspension. He was also told his next warning would result in a 30-day suspension. At that point, ZV was approved for an absence to return to school and complete his carpenter certification studies.
Upon return to Kent Homes, he continued to miss work without justifiable reasons. On March 6, 2023, he was called into a disciplinary meeting where it was pointed out his absence level had risen to 10.5%. Though the employer warned earlier of 30-day suspension, as allowed in the collective agreement, it suspended him for five days on this occasion — but it came with a warning that the next level of discipline would result in termination.
Management said it wanted to show compassion to ZV by reducing the 30-day suspension to five days. At the March 6 meeting, ZV’s supervisor asked if he knew why they were meeting.
ZV said yes and retorted: “How dare I have the audacity to be sick on a work day.” The supervisor then read the remarks out loud, including that the next level of discipline would result in termination. The letter was signed by the supervisor and the shop steward, but not by ZV — he refused to sign it.
A supervisor told him the warning would still be “counted in your file” despite his refusal to add his signature. That generated this reply from ZV: “I really don’t give a fuck.” He then got up and left the meeting to continue his shift. That statement was reported to DC, the director of operations.
On March 9, 2023, DC met with ZV and the union to terminate his employment — citing the language he used during the March 6 meeting that violated company policy. DC said the language was not permitted and would not be tolerated by the employer.
The termination was grieved.
The arbitrator’s ruling
The arbitrator’s decision ultimately upheld the dismissal, aligning with the employer’s interpretation of events and the stipulations of the Collective Agreement.
The union stressed the fact that profanity is regularly used by employees, including supervisors on the shop floor — and the arbitrator said the evidence backed that up.
“However, no evidence was presented that profanity is, or was, ever used or accepted in the context of a formal disciplinary meeting,” the arbitrator said. “I also find no justification that it should be condoned in that setting. The fact that the Grievor has no history of using foul language with his supervisors does not excuse his comments of March 6, 2023.”
It noted that failing to report to work or being insolent and disrespectful with a supervisor are forms of insubordination.
“Events are not to be siloed when considering their import and the overall history of work performance of an employee,” it said. “The actions of (ZV) on March 6, 2023, amounted to a fifth offence under Article 19.11 (e) of the Collective Agreement. The penalty called for in the contract provision was specific.”
It ruled the termination was based on an “unambiguous offensive statement and a clear provision of the Collective Agreement.”
For more information, see Unifor, Local 62n v Homes, 2023 CanLII 106646 (NB LA)
