GRIEVANCE ARBITRATION EXERCISE

EVA DUMBROVSKI CASE

Union Arbitration Team

June 2022

Meagan Carson-Leistra, Vera Alphonsus, Roxanna Keshavarznia, Seharish Shahzad

table of contents
 Presentation to the Arbitration Board – Eva Dumbrovski

Facts of the Case

Staff involved in the incident:

Eva Dumbrovski
 Position: Unionized, Lift Truck Operator
 Seniority: 6 years
 Age: 30
 Employee Record: numerous letters and suspensions on file for absenteeism, poor
performance, failure to report, failure to notify

Karen DeMarcos
 Position: Unionized, Lift Truck Driver
 Seniority: 20 years
 Age: 55
 Employee Record: clear disciplinary record
 
Anne Gagnon
 Position: Non-unionized, Supervisor
 Seniority: 10 years (5 as a unionized member and 5 as a supervisor) 
 Employee Record: being considered for promotion

Linda Graham
 Position: Supervisor

Date and Location of Incident:

 Aug 15th at Rock Garden Bar and Grill on lunch hour

 Incident occurred during the staff’s lunch hour and was not on company property

Description of Incident:

 Anne and Linda (Mangement) were having lunch together at Rock Garden Bar and Grill.
Eva and Karen (employees) were having lunch at the same location.
 Anne approached Eva and Karen and told them they would be completing overtime.
 Eva advised they wouldn’t comply with overtime (OT) as they already did OT this week.
 Anne returned to her table and then proceeded to the parking lot to wait for Linda.
 Karen and Eva entered the parking lot and advised again that they wouldn’t complete
OT.
 Eva, and then Karen, pushed Anne. Anne pushed Eva and Karen back.
 Karen and Eva attempted to slap Anne. They did not make contact however Anne fell
onto the ground after dodging the attempted slaps.
 Linda entered the parking lot and told all of them to stop which resulted in them stopping
the physical altercation.
 Anne advised Karen and Eva that they were both terminated immediately while still
standing in parking lot and to not return to work.
  A passerby witnessed and commented on the fight.

Result:
 Grievances were submitted regarding the terminations.
 Upon Management and Union agreement, Karen received a 30-day suspension without
pay.
 Due to lack of agreement, Eva’s grievance has proceeded to arbitration.
 Anne did not receive discipline for her role in the incident. The union is requesting that
Anne be terminated. 

Union Arguments

 The Union takes the position that discipline for Eva was warranted but termination is
excessive in this case. Our arguments are as follows:

Nature of the misconduct

 Anne provoked Eva by approaching her outside of work on designated lunch time.
Anne’s tone effectively taunted Eva about working OT. In cases where employees are
provoked by management, penalties are often reduced. (REFERENCE P241).
 After being provoked by Anne, Eva acted impulsively. While the reaction was
inappropriate, it was not pre-meditated, and was certainly a sudden emotional outburst.
REFERENCE P241).
 When examining the seriousness of misconduct, although a physical altercation is a
serious matter, Anne was not injured. Eva, Karen, and Anne were each guilty of pushing
and although a slap was attempted by Eva, she did not make contact and therefore was
not directly responsible for Anne falling. While Eva initiated the first push, Anne
reciprocated even though she is a superior and had recent training. Standards and
expectations for a Supervisor should be higher than for front-line staff. By shoving Eva
back, Anne effectively condoned the behaviour. Anne has not been disciplined to the
same extent, if at all. Anne was clearly in the wrong as can be seen by Linda’s reactions.
 Linda asked Anne to calm down and address the matter at the Plant. She then stepped
in to break up the physical altercation whereas Anne’s initial response was to shove Eva
and Karen. Linda’s actions support our position as she determined Anne was acting
inappropriately.
 As seen in the description of the incident, Karen also participated in the incident and
received a much less severe discipline (30-day suspension). Although Karen’s record is
clean, there is a wide gap in the discipline for both employees.
 The Union refers to case Precedent 1 – Dryco Drywall Supplies Ltd v Teamsters Local
Union No 213, 2013 CanLII 7695 (BC LA)- although this employee lit someone on fire, it
was determined that termination was excessive, despite having a clear safety policy. In
this case the employee was suspended without pay for a period of 4 months. This case
had the potential for significant consequences whereas Eva’s transgression was much
less severe. Anne did not suffer a serious injury. Eva did give reasonable cause for
some form of discipline but termination is an excessive response. Additionally, in this
case, the arbitrator considered the fact that provocation was involved in the altercation.
In this case Anne provoked Eva and Karen by taunting them about having to work
overtime.REFERENCE
 The Union refers to case Precedent 2 – City of Hamilton vs Hamilton Fire Fighters – in
this case there were verbal and physical exchanges that only led to a total of 15 day
suspension. It was noted that employees shouldn’t lose employment because of
 personality conflicts or disagreements that did not threaten legitimate employer interests
and that employees are not required to like superiors REFERENCE.
 The Union refers to case Precedent 3, where an employee slapped their Supervisor but
was ordered to be reinstated and rewarded $25,000 in damages. Again, Eva did not
unilaterally participate in the physical altercation and didn’t make contact when she
attempted to slap Anne. REFERENCE

Grievor Factors
 Eva has 6 years of service with Wilson Brothers. While this is not an extreme length of
time, it is still enough seniority to consider when making a termination decision.
 Eva has a disciplinary record which notes absenteeism, poor performance and failure to
notify. This previous misconduct was unrelated to any physical or verbal altercations and
therefore should not be given significant weight when determining a recommendation.
As stated in Precedent 1 – Dryco vs Teamsters - this type of offense was an isolated
incident, not a recurring issue in Eva’s 6 years of service and therefore termination is
excessive.

Procedural Errors
 In regards to company procedure, OT was not offered in the correct order as per the
collective agreement. Eva had already worked OT in the week of the incident. As per
Clause 4.2, Hours of Work and Overtime, reverse seniority must be considered when
allocating overtime. Eva who has 6 years of experience at the company should not have
been contacted first to fill the overtime slot. There are other employees with less
seniority who should have been approached first.
 Clause 4.2 also states that OT is voluntary unless it’s an emergency. It is management’s
responsibility to prove that OT is an emergency. Anne demanded that Eva work OT
instead of asking and did not state that it was an emergency.
 Clause 4.2 asserts that an hour for lunch allocated to the employees is to be set aside
and during this lunch hour they are off duty. The Employment Standards act also states
this. Eva was on her personal time, not on the job at the time of the incident and
therefore Anne violated Clause 4.2 when she approached her with the OT demand.
 Throughout Wilson Brothers Company, rules regarding discipline are not consistently
enforced. When this occurs, expectations regarding misconduct are unclear which
generally can lead to penalties being reduced p241.
 In regards to the issuance of the discipline (ie. Termination of Eva), proper procedural
requirements were not followed. There was no meeting with Eva to review the
misconduct, therefore she had no formal opportunity to respond. The discipline did not
occur with a Union representative present. Previous misconduct was not mentioned at
discharge and therefore cannot be brought forward as evidence.
 As a Supervisor, Anne represents the company and should abide by all rules regarding
scheduling and termination of employees. It is clear this did not occur which is unfair to
Eva.

Recommended Decision
  The Union recommends that Eva be reinstated with her termination struck from her record. We
agree that some form of discipline is warranted and therefore propose Eva be suspended with
no pay for a period of 4 months. Time elapsed since dismissal should be counted toward the 4
month suspension. Finally, Eva is prepared to apologize for her behaviour in this incident.
 The Union acknowledges Eva’s past disciplinary record. but asks that the arbitration board
consider these main factors to support our recommendation:
o Seriousness of situation. This incident was isolated in nature. Eva has not participated in
physical altercations previously. Her past discipline is unrelated to the nature of this
incident.
o Length of service. Eva has 6 years of seniority.
o Lack of premeditation. Eva’s response was emotional in nature and occurred in the spur
of the moment.
o Provocation. Anne, as a manager is responsible for provoking the incident. Anne’s
conduct instigated and perpetuated the incident and therefore Eva should not take the
brunt of the discipline.
o The participation of another employee and management in the incident who have
received much less extreme discipline.
o If fighting is an infraction subject to summary dismissal, then Anne should be subject to
the same conditions as Eva.
o Case Precedent. Case Precedent 1, 2, and 3 as referenced above, which involved more
serious incidents with lesser discipline. Precedent 1 allowed for a 4 month suspension
when an employee lit another employee on fire. We feel this is an acceptable
comparison.
o Failure of management to enforce rules. Wilson Brothers management has consistently
failed to uniformly discipline employees.
o Contravention of Collective Agreement. Management has failed to follow procedures
regarding discipline (no formal meeting with union representation and no mention of
previous discipline at said meeting). Eva was not provided the opportunity tot apologize
due to this lack of meeting. Management also failed to follow procedures for issuance of
overtime as per Clause 4.2 of the collective agreement.
 Should the arbitration board not accept the Union’s recommendation we would ask for a last
chance agreement (REFERENCE 241)

Recommendation to Senior Management Regarding Anne Gagnon

 Anne should receive a disciplinary action for participating in the fight and for provoking
the employees. Therefore, the Union recommends that Anne be suspended without pay
for 15 days and be required to apologize for her part in the incident.
 Senior Management should evaluate the effectiveness of the training given to
supervisors because Anne lacked leadership skills and understanding of supervisory
processes such as requesting overtime and respecting lunch hours.
 Senior Management should help Anne develop other leadership skills that would help
her do a better job in relating with other employees before considering a promotion. She
did not handle the situation correctly from the beginning and requires mandatory training
to improve her leadership skills.
  Clause 7.3 Discipline, Summary dismissal – This clause states that harassment may
result in dismissal. Anne used a very rude tone while addressing Eva and Karen and
must be spoken to about appropriate behaviour.

References

ANDREW DUFFY/ OTTAWA SUN (Public Service Labour Relations and Employment BoardI
March 2, 2016).
City of Hamilton v Hamilton Professional Firefighters Association (Ontario Labour Arbitration
Board July 20, 2015).
Dryco Drywall Supplies Ltd v Teamsters Local Union No 213, 2013 CanLII 7695 (BC LA) (British
Columbia Labour Arbitrator February 2013).
Suffield, L., & Gannon, G. L. (2020). Labour Relations (5th Edition). Pearson.