Suspensions, firing due to worker’s misconduct, not physical restrictions: arbitrator

Culminating incident

Hartmann decided that the incident was a culmination of his past misconduct requiring discipline. Given his record of performance mistakes, taking unauthorized breaks, and not doing assigned work, the company deiced that he was not a productive employee. In addition, he seemed unwilling to change his behaviour and, if he was disciplined, he played the “restrictions card,” said the company.

The union grieved the three-day and five-day suspensions as well as the termination, arguing that Hartmann didn’t assist the worker with his restrictions and instead dismissed his concerns.

The arbitrator noted that the worker genuinely believed that the criticism of his job performance and the discipline he experienced was because of a lack of respect for and belief in his physical restrictions However, he had to show proof that he was treated adversely because of his physical restrictions, the arbitrator said.

The arbitrator found that there was no evidence of any harassment. The employer seeking clarification on his restrictions was reasonable as long as there were grounds for it and the employee’s privacy was respected, the arbitrator said, so the employer can safely and productively accommodate the worker. The worker’s claim that some of the duties he had been assigned were outside his restrictions gave Hartmann reason to clarify them, the arbitrator added.

Insubordination

Ultimately, the three-day suspension was justified because the worker didn’t complete his tasks or notify his supervisor that they weren’t finished, said the arbitrator. As for the five-day suspension, it was clear that the worker was not authorized to take “pain breaks” and he had not communicated that he needed one, leaving the task not completed. Failing to show up at the appointed time was insubordination which, given his past disciplinary record, was worthy of a five-day suspension, said the arbitrator.