Reinstated: Worker fired for leaving work without permission

“When addressing disciplinary action of any sort, you have to ensure that you’ve collected all of the relevant evidence and canvassed the witnesses, and, of course, determine that any employee claims of permission or accommodation are properly substantiated.”

So says G. John Samms, a partner with Stewart McKelvey in St. John’s, after a Newfoundland and Labrador worker was reinstated by an arbitrator because the employer didn’t prove that it had just cause for dismissal.

The worker was employed since 2019 as a machinist/mechanic at a mine in Wabush, NL, operated by Tacora Resources, an iron ore mining and development company.

The collective agreement outlined progressive discipline for misconduct, consisting of a three-step process involving two written warnings and a three-day unpaid suspension. After that, just-cause termination would result. Tacora was prohibited from discharging an employee without just cause.

In 2019, the worker was dismissed due to issues with his belligerence, being disrespectful, and showing anxiety. Management believed that the worker was still on his probationary period, but his probation had ended one day earlier. As a result, Tacora reinstated him with a time-served suspension and referred him to an addictions centre after the worker advised of some issues he was having. This led to a return-to-work agreement requiring random drug and alcohol testing.

Issues with anger and leaving work

The worker continued to have issues with supervisors and managers, often getting angry and leaving the worksite. He also refused to use tools that were provided by the company, often getting upset when he didn’t have the tools he needed. Management felt that when this happened, the worker couldn’t focus and his production declined, so sometimes the worker would either leave work or be sent home. According to the worker, he never left the Tacora worksite without permission, although he acknowledged doing that at his previous employer.

In April 2022, the worker was given a written warning for sleeping in his truck. The worker advised that he was on anxiety medication that made him sleepy, so Tacora put him on 10-hour shifts instead of the normal 12-hour shifts. In June 2022, the worker was issued a three-day suspension for interacting with a supervisor in “a negative and disrespectful manner,” after which he left work early. The worker claimed that a supervisor told him to go home and, after discussion with the union, Tacora reduced the suspension to one day.

On Oct. 5, 2022, the worker met with management to discuss a return to a 12-hour shift, his refusal to accept the tool kit provided to him, and his habit of leaving the workplace. The plant operations manager told the worker that he had to stop walking off the worksite or the next time he did it, Tacora would consider him to have quit his job.

The worker responded in the affirmative and didn’t raise any concerns about the tools or shift change.

“It seems that the shift change wasn’t met with any resistance from the worker and there was no clear accommodation request,” says Samms. “There was prior knowledge of some medical issues and medication, but there didn't appear to be any issue with the worker returning to 12-hour shifts – and, ultimately, neither the worker nor the union raised one.”

About one month later, the worker was spotted by a supervisor and a government inspector not wearing a hard hat or safety glasses. Tacora received a government directive and it suspended the worker for three days, later reduced to two.

Worker wanted to leave workplace

On Feb. 16, 2023, a pump that hauled waste from the mine’s tailings pond broke down, causing three of the six mill lines to shut down at a cost of $27,000 per hour. A nightshift crew worked on it but weren’t able to complete it. The worker’s crew took over the assignment.

The operations manager briefly encountered the worker on a staircase, noting that the worker wasn’t heading in the direction of the assignment. The worker was agitated and didn’t have the right tools.

According to the worker, he had worked a 12-hour shift the previous day and had less than 12 hours rest. He told a supervisor that he was exhausted and didn’t have enough energy, asking if he could go home. The supervisor agreed and, when the worker asked if he needed to see a nurse, said no.

A short time later, the operations manager sought an update on the pump repair and was told that the worker had left the worksite. A supervisor said the worker was “pissed off” and he wasn’t feeling well. The worker didn’t go to the first aid office before leaving, which was protocol at the mine although not everyone was referred to first aid. Swipe card data revealed that the worker entered the worksite at 7:26 a.m. and left at 9:30 a.m.

Tacora had to reassign the worker’s work to somebody from another team, contributing to a delay of almost four hours and a loss of more than $100,000.

Termination of employment

The next day, Feb. 17, Tacora terminated the worker’s employment for leaving the worksite without permission. It cited the worker’s history of disruptive behaviour, including multiple instances of leaving work without proper approval, and his refusal to use the tools provided. The company claimed this behaviour caused significant operational and financial impact due to the delays in reassigning his work.

The union grieved the dismissal, claiming that Tacora didn’t have just cause and the worker should be reinstated. It pointed to a millwright who worked with the worker who testified that supervisor told the worker he could go home if he wasn’t feeling well.

Tacora countered that, in addition to the worker’s disciplinary record and negative impact of his misconduct on his co-workers and the business, the worker showed no remorse or contrition and had been warned about leaving without permission.

The arbitrator determined that the employer didn’t provide sufficient proof that the worker left the workplace without authorization. Testimony from the worker and the colleague supported the claim that the worker had received permission from his supervisor to leave due to feeling unwell.

The arbitrator found this evidence credible and noted that it wasn’t directly contradicted by Tacora. The supervisor in question didn’t testify and no evidence was presented that refuted the worker’s claim, so the arbitrator concluded that Tacora didn’t prove just cause on the balance of probabilities.

Lack of documentation, evidence

It was a key point for the arbitrator that Tacora didn’t adequately document or refute the worker’s claim that he had permission to leave the work site, says Samms.

“There was direct evidence from the worker and a co-worker in relation to the direct supervisor having given the permission to leave, and that supervisor wasn’t called as a witness,” he says. “That appears to be the biggest misstep [for Tacora] in terms of undertaking a thorough investigation as to the circumstances and ensuring that that all of the evidence was collected before proceeding.”

There may have been good reasons why Tacora’s counsel didn’t call the supervisor as a witness, but the company didn’t make up for it, adds Samms.

“There appears to have been a reasonable opportunity to establish just cause without calling that person as a witness but, as it turned out, the employer's major misstep was not accounting for the worker’s evidence or calling any sort of rebuttal evidence contradicting the notion that the supervisor had approved the worker leaving that day.”

Regardless of the worker’s disciplinary record, the arbitrator emphasized that the core issue was whether the worker had left the worksite without permission on Feb. 16, 2023. Given the unchallenged testimony indicating that permission had been granted, the arbitrator concluded that the termination wasn’t justified.

Unable to prove just cause when worker left job

Beyond calling the supervisor to testify, Tacora at least needed advance knowledge of the worker’s evidence and position itself to respond to it, according to Samms.

 “One wonders if the direct supervisor had the authority to allow the worker to go home or whether he had to seek permission from a higher-up manager,” he says. “These are the types of things that, if the employer had any sort of evidence to counterbalance the worker’s evidence and the co-worker’s evidence, might be what it needed in order to support its argument for just cause.”

Tacora was ordered to reinstate the worker without any loss of seniority. The arbitrator reserved the right to address the matter of compensation if the parties couldn’t reach an agreement.

Clear documentation and communication of the workplace policies and expectations are crucial for employers if they’re trying to prove just cause for dismissal that will hold up to scrutiny, says Samms.

“You have to approach the termination decision in an even-handed manner, almost as if you’re the objective decision-maker, and apply a procedural fairness lens - that will generally lead you to the right place at the end of the day,” he says.

See USW, Local 6285 and Tacora Resources Inc. (Critch), Re, 2024 CarswellNfld 248.