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We read a lot of case law. Now and then, a case stands out purely for its comedic value. The recent decision of arbitrator Guy G. Couturier in Unifor, Local 62n v Kent Homes, 2023 CanLII 106646 (NB LA) is one of those cases. It involves a Grievor, Mr. Vanschuppen, whose employment was terminated following a progressive discipline process. Here are some background facts from the case:
- Mr. Vanschuppen was frequently absent, and due to his “truancy,” he was progressively disciplined.
- At one point, when he was issued a 3-day suspension, he suggested to management that they should make it a 4-day. A 4-day would have given him a whole week off work.
- He provided no substantiation of his absences. At the hearing, Mr. Vanschuppen testified that he was lactose intolerant, and his absences were related to that condition. However, he didn’t have a doctor, and his diagnosis was based on a “self-administered blood test” that he had “professionally analyzed.” No evidence of the analysis was submitted at the hearing.
Mr. Vanschuppen’s employment was not terminated due to his absenteeism. Instead, the culminating incident was his reaction to the penultimate step under the progressive discipline process – a 5-day suspension he received for his absenteeism. In the meeting, the employer tried to impress upon Mr. Vanschuppen the precarity of his situation and the fact that termination was the next step in the discipline process. Mr. Vanschuppen’s response was – “I really don’t give a f*&%.” Then he got up and went back to work. Three days later, Mr. Vanschuppen found himself in another meeting with management, where he was advised his language breached company policy and that he was fired.
Arbitrator Couturier rejected the union’s argument that the language should be dismissed as “shop talk” and instead characterized Mr. Vanschuppen’s comment as insubordination. Further, the only remorse shown by Mr. Vanschuppen was during the grievance meeting, where the union representative had to kick Mr. Vanschuppen under the table to encourage him to apologize. Needless to say, the termination was upheld as a culminating incident.
The tale of Mr. Vanschuppen’s employment demise made us curious. When does profanity in the workplace justify termination? Surprisingly, only sometimes. Even discipline short of termination is regularly reduced by arbitrators. Here are some examples.
Swearing at students…
In Peterborough Victoria Northumberland and Clarington Catholic District School Board v. Ontario English Catholic Teachers’ Association, a Catholic secondary school teacher grieved a three-day suspension he received for telling a student to “stop the f***ing attitude”. The teacher explained that he was trying to address the student’s misbehaviour and use of profanity, but he was being dismissive and defiant. It was suggested that the teacher’s use of profanity was in the spirit of a “teachable moment”; however, Arbitrator Gordon Luborsky disagreed and stated that “the use of such language in a school teacher’s interactions with a student is prima facie inappropriate” (para 66).
Arbitrator Luborsky concluded that the teacher’s conduct was wrongful and deserving of discipline. Still, a three-day disciplinary suspension without pay was not appropriate and was reduced to one day.
Flipping the Bird…
In Smurfit – MBI v. Independent Paperworkers Union of Canada, Local 949, the grievor’s employment was terminated for giving his supervisor “the finger” after he wished the grievor a good morning and inquired as to why the grievor did not respond. According to the employer, this was the culminating incident following a series of disciplines for similar behaviour. The grievor indicated that his action was not intended to tell his supervisor to “f*** off” but was a gesture to leave him alone. Arbitrator John Stout stated that “giving the finger” was equivalent to saying “f*** you,” and profanity directed towards a supervisor is insubordination. Arbitrator Stout concluded that the grievor’s actions justified the imposition of discipline. However, because the grievor’s actions seemed to be partially motivated by strong emotional impulses that he was feeling due to being advised that his dog would be put down, arbitrator Stout ordered reinstatement.
Directing profanity to your boss in earshot of the public…
In Municipality of Chatham-Kent v Canadian Union of Public Employees Local 12.1, the employer, a hospital, terminated the employment of the grievor because of how she conducted herself upon learning that another ward aide was working a shift that she believed was hers to work. Specifically, the grievor called her manager about the issue and publicly swore and yelled at him, saying “this is f***ing ridiculous” or “f***ing bullshit” multiple times after he directed her to leave the unit. The grievor did this within earshot of patients, visiting family members, and co-workers in the Intensive Care Unit (ICU). Arbitrator Ted Crljenica found that the hospital was entitled to discipline the grievor for her conduct but found that termination was excessive. The behaviour was out of character for the grievor, and she was a six-year employee with nothing on record within the sunset period. Arbitrator Crljenica concluded that a four-week suspension was appropriate.
Forgetting to hang up the phone…
In Stratford (City) v. Stratford Professional Fire Fighters’ Association, the grievor called a local business owner to remind him that he was overdue for an inspection of his premises. He left a voice message and thought he disconnected. Instead, the message recorded the grievor saying, “Good f***ing luck with that,” and when he was asked what he was talking about, the grievor said he was talking about the “f***ing” business owner. Although the comments were unintended for the business owner’s ears, they were still worthy of discipline. After all, employees are responsible for the consequences of their speech acts and acting out. However, Arbitrator Randall exercised his discretion to reduce the penalty to a written warning because the injury to the businessman was unintended. There were a host of conventional mitigating circumstances, such as the grievor’s honesty and willingness to take responsibility for his actions.
Writing “f*** it” instead of completing a work log is bad…but not that bad…
In ADM Agri-Industries Company v United Food and Commercial Workers Union, Locals 175, the grievor received a five-day suspension and final written warning for several bad behaviours, including taking breaks at times other than designated times, falsifying his punch card, not completing paperwork as prescribed and using profanity on official company documents. Specifically, rather than filling out his “Daily Line Sheet,” which required identification of the number of items that the grievor removed from the conveyor and their storage spot in the warehouse, the grievor wrote
“F*** it. No count today” across the sheet. Interestingly, concerning this particular misconduct, Arbitrator Dana Randall stated that “standing on its own, it would attract no more than some kind of warning.
Severe but spontaneous profanity-laden verbal attacks…
In Senior Flexonics (Canada) Limited v. Sheet Metal Workers’ International Association, Local Union 540, the employer terminated the employment of the grievor for gross insubordination towards management and reprehensible conduct towards another employee, which involved screaming obscenities at and maliciously threatening to physically harm her by waving a hose in her face. Upon review of the evidence, Arbitrator Owen V. Gray found that the grievor yelled and screamed at a co-worker, both as he walked quickly towards her and when he reached her. He used the word “f***ing” and called her a “motherf***er” and “c***sucker” and made a comment suggesting she perform fellatio on him. Arbitrator Gray concluded that the grievor was out of control and verbally assaulted his co-worker. Still, there was no threat of physical assault and no substantial risk to the co-worker of physical injury.
Arbitrator Gray found that the grievor’s misconduct spontaneously responded to the employer changing his work assignment to one he disliked after his co-worker suggested she should be given the grievor’s work assignment given her seniority. He did not find that the grievor’s misconduct was premeditated. Arbitrator Gray did state, however, that the grievor’s insubordination and verbal assault on his co-worker amounted to serious misconduct. Still, the question was whether some discipline short of discharge was and is likely to reform the grievor so that he would not be likely to engage in such misconduct again. Ultimately, Arbitrator Gray concluded that a lesser penalty – a one-month suspension – was the appropriate response to the grievor’s misconduct.
Editor’s note – This case was decided in 2010. We question whether the outcome would be the same today now that arbitrators have a much lower tolerance for aggression in the workplace.
Speaking of the good old days…
In Re St. Lawrence Seaway Authority and Canadian Brotherhood of Railway, Transport and General Workers, (a case from 1978) the grievor was the local Union chairman of the grievance committee. In a grievance meeting with a management representative, he called him “nothing but a puppet for the regional director” and a “f***ing a**hole with no guts, and had never listened to anybody else’s side of the story.” The grievor also told the management representative that he made a “f***ing farce out” of the office and that he was “no f***ing good” and was the worst of those who held the position. The grievor ended his rant, commenting that he did not “give a f*** if he ever saw him again.”
Things were different in 1978. Arbitrator Brown found that there was no just cause for discipline. The exchange with management was a case of a union brother representing another union brother and not insubordination.
A little remorse goes a long way…
In Tembec Enterprises Inc. Forest Products Group v United Steelworkers, Local 1-2010, the grievor’s employment was terminated for violating health and safety, workplace harassment, and violence policies. Specifically, in an attempt to frustrate a co-worker who made him mad, the grievor called her several offensive names including “old bag,” “you stink,” “useless b****,” “f***ing c***,” and he said to her “don’t look at me, you are too ugly .”The co-worker responded to the grievor by “giving him the finger,” to which he laughed.
The main issue before Arbitrator Kim Bernhardt was whether or not termination was the appropriate response to the grievor’s misconduct. In deciding to reinstate the grievor, Arbitrator Bernhardt focused on the potential for the grievor’s rehabilitation. She writes that “the key indicators of whether or not such rehabilitation is possible are the grievor’s truthfulness, insight and acknowledgment that their actions were wrong, and their willingness to take responsibility for their actions” (para 51). In the end, she found that the grievor was truthful and accepting of the responsibility for his behaviour, without which she would have upheld the termination of his employment.
At this point, we are questioning how far an employee has to go to lose their job for profanity-packed shenanigans. Where the profanity is a side hustle to the genuinely offensive behaviour, then there is no coming back.
Profanity and humiliating co-workers…
In Aramark Canada Ltd v United Food and Commercial Workers Canada Locals 175 & 633, the grievor returned to work after being on leave to care for her mom, who eventually passed away. On her first day back, the grievor called two (2) cooks “f***ers” for not sending condolences or offering any sympathy following the death of her mother. She said “that they could go f*** themselves.” Ten days later, the grievor pulled down the pants of one of the co-workers in front of other employees and customers.
The grievor claimed that she jokingly pulled down the pants of her co-worker and that she did not intend to embarrass him. This evidence was rejected by Arbitrator Louisa Davie, who noted that the comments the grievor made to her co-worker ten days prior were reflective of her attitude towards him and made it more reasonable than not to conclude that her offensive behaviour during the Super Bowl incident was purposeful and intentional. She intended to demean and embarrass her co-worker and engage in serious misconduct, not horseplay. The termination was upheld.
One too many F-Bombs…
In Ontario Power Generation v Society of United Professionals, the grievor was a manager terminated for just cause based on findings in a workplace investigation and assessment of a Dive Crew, as well as two (2) human rights and harassment complaints in which the grievor was the respondent. The grievor’s conduct was determined to violate the employer’s Code of Business Conduct, the Occupational Health and Safety Act, and the Ontario Human Rights Code.
Many witnesses gave evidence in this proceeding and provided the following examples of offensive comments and profanity used in the workplace:
- “stupid f***”
- “feminine loser”
- “you take 45 minutes f***ing s*** breaks, you take too f***ing long to get coffee, you take too f***ing long lunch breaks”
- “f***ing idiot”
- “I know you are on light duty, you can’t do f***ing anything”
- “I’m not f***ing contradicting myself”
- “Just put the f***ing pump in the hole, you don’t need to be on a f***ing permit for that”.
The evidence given regarding the grievor’s use of profanity in the workplace often included descriptors such as “yelling” and “pointing fingers .”In the end, Arbitrator John Stout concluded that not only did the grievor permit a toxic and poisoned work environment to develop on the Dive Crew and did nothing about it, but he contributed to it. Arbitrator Stout found that the employer had just cause to impose discipline. After balancing the many mitigating and aggravating factors, he decided that an award of damages in lieu of reinstatement was appropriate here.
So there, you have it. “Shoptalk” is still alive and well in Canadian workplaces, and it is not necessarily what you say but how you say it that matters.