Patruniuk v Candu Energy ( YM2707-11352) Arbitrator Price in a CLC unjust dismissal case had a employee who repeatably refused to take a refresher course in basic radiation protection. Despite numerous meetings to hear his concerns, he still refused . Finally he he was told by email that if he did not complete the training that day, he would be fired .
The employee did not see the email until after work on that same day .
He was fired the following day, which was a Friday
However, after finally seeking legal advise, the employee, on the Tuesday following his dismissal emailed his employer an apology and agreed unconditionally to take the training, which was a one hour computer PowerPoint exercise.
The Complainant at the hearing wisely admitted that he had been insubordinate but simply argued that dismissal was not warranted but rather he should have received some lesser degree of discipline.
In deciding to reinstate the employee with a two month suspension, the Adjudicator took the following matters into account:
- The insubordination was of of a minor nature which was only tangentially related to his job duties.
- He did not openly challenge management in front of other employees.
- The employee remained civil in his dealings with management.
- The workplace encouraged employees to adopt a ” questioning attitude “
- The Employer never used progressive discipline. The fact that upon termination he immediately apologized and agreed to take the training was seen as evidence of the fact that a lesser penalty would have modified his behaviour.
- The employment relationship was not irredeemably fractured.
My Comments :
It must be remembered that reinstatement with a suspension is a remedy open to CLC Adjudicators, but not judges in a civil action.
This case also illustrates the wisdom of not trying to argue the impossible. Some lawyers would have attempted to dream up some bizarre rationale for their clients behavoir and only when that argument failed, would they argue for a lesser penalty.
It is a much better tactic to admit the wrong and argue the penalty. Judges and arbitrators so rarely see people taking responsibility for their misdeeds that when they actually encounter it, they will often exercise their discretion and do something to lessen the blow of the termination.