Discipline and Discharge - Stewart McKelvey

Discipline and DischargeEmployer WinsPictou County Health Authority and CUPE,Local 2525 (2012: NSARB)discovered when other employees noticed thatthere was a shortage of the egg mix. When theemployee heard about the missing mix, heWhat happened: Grievor, technician at Central realized it was his fault and told his supervisor.Sterilization and Processing Department,dismissed after allegedly failing to properly cleanand sterilize some equipment that was thenWhat the arbitrator said: Discharge upheld.Although, the grievor conceded his errors andused in a surgery on a patient. Grievor denied showed remorse, the arbitrator upheld theallegation.discharge for the following reasons:What the arbitrator said: Discharge upheld.The weight of all the evidence proved on abalance of probabilities that the grievor waseither ignorant of procedure, or simply declinedto follow procedure and allowed a potentiallyunsanitary pan to make its way to the operatingroom where a patient was exposed to potentialharm. In addition, the grievor had a blemisheddisciplinary record involving dirty equipment orother breaches of policy. His consistentperformance revealed a significant flaw: herelied on his own sense of how to do thingsrather than follow procedure and was willing tocut corners. His 12 years of servicedemonstrated that he has had a sufficient periodof time to get a firmer grip on the need to followprocedure and yet he didn’t do so.Errors made were serious and could’vehad disastrous results. Systems in placethat were designed to prevent this kindof occurrence were ignored;Was not the employee’s first error of thiskind and the error was compounded byhis failure to follow proper recordingprocedures. This made the error moredifficult to trace;Errors made related to the core of theemployee’s job;Employee was given a warning only afew weeks before the incident for thesame type of carelessness; andUnilever Canada Inc., Good Humour-Breyers,Simcoe Division and United Food andCommercial Grievors Canada, Local 175(Ryan Baetz – Grievor)What happened: Grievor discharged followingincident in which he mistakenly added theallergen egg into a flavour mix for ice cream.Fortunately, the ice cream hadn’t left the factory,but the incident resulted in more than 15,000tons of ice cream destroyed. The error was Employee wasn’t a long serviceemployee, having only three years’service.TWD Roads Management Inc., andInternational Union of Operating Engineers,Local 793 (Stan Eastman)What happened: Grievor discharged forunprofessional behaviour and unprofessionalconduct towards a member of the public. His jobwas to assist in traffic operations and road- 1 -

Discipline and Dischargerecall if she had actually accessed the files ofanyone she knew. However, the audit revealedthat she accessed patient files of people sheknew on several occasions, although she statedshe never looked for information by name. Thearbitrator noted that the program only allows foraccess to patient files by name. The grievortestified that she was accessing the informationin order to learn; her intent wasn’t malicious. Forexample, she accessed particular patient files ifthey had an interesting diagnosis. Interestingly,the grievor had signed a new confidentiality formon April 29, 2011 in which she agreed thataccessing information not required for jobpurposes would be a violation of theconfidentiality policy. The grievor testified thatshe hadn’t read the agreement before shesigned it.What the arbitrator said: Discharge upheld.The arbitrator concluded that the grievor hadviolated employer policies, legislation and theCollege of Nursing standards. Although thegrievor didn’t ever disclose the information sheaccessed or misuse it in any way, the arbitratorfound that the employer had just cause fordischarge.National Art Centre and Hospitality & ServiceTrade Union (Ozcan Ilaslan)What happened: Grievor was hospitalityemployee who refused work in a specific area ata banquet in front of other employees. Thebanquet captain asked the grievor to leave, whoinstead chose to work in another area for theduration of the shift. A meeting was scheduledwith the grievor and the union representative todiscuss the incident. The grievor didn’t attend. Aone-day suspension was imposed. This wasn’tthe first incident of this nature. The employersent a letter reminding the grievor that hecouldn’t refuse work normally done by allbanquet servers. Further, if he required specificaccommodations to provide a doctor’s noteindicating what functions could be performed.The letter also advised of the one-daysuspension and that further instances would because for further discipline. The grievor wassubsequently disciplined for absenteeism. Then,in June of 2009, the grievor was scheduled towork five shifts. As a result of an injury, he wasunable to work these shifts and provided adoctor’s note to the health and safety officer. Hereturned to work the following week and advisedthe banquet captain that he could work modifiedduties only, but didn’t have a doctor’s note to thiseffect. The banquet manager sent him homewith pay. The health and safety officersubsequently advised that the grievor was to beon modified duties for that week. The grievorwas concerned that the accommodation requiredwouldn’t be respected. The health and safetyofficer assured him that his limitations had beendiscussed with the manager. The grievor wasscheduled for three shifts the following week, butdidn’t report to work for these three consecutiveshifts and didn’t inform the employer that hewould be absent. The employer unsuccessfullyattempted to contact him by telephone. Thegrievor was terminated from his employment byway of letter the day following the last scheduledshift that was missed. The grievor claimed heattempted to contact the manager, but thealleged calls were made on the weekend anddays when he ought to have known she wouldn’tbe at work to receive those messages. Thegrievor had previously been disciplined for failingto show up for scheduled shifts and ought to- 3 -

Discipline and Dischargehave known there was a progressive disciplineprovision in the collective agreement. Therefore,he should’ve taken additional steps to contacthis employer to advise that he wouldn’t beshowing up for a scheduled shift. Further, themanager testified that there were no messagesleft at the time that the grievor alleges he calledwith respect to the shifts in question.What the arbitrator said: Discharge upheld.Lakeridge Health Corporation and OntarioPublic Service Employees Union (BogdanKoscik)What happened: Grievor discharged forallegedly falsifying overtime claims. This wasbrought to the attention of the supervisor whenanother employee made a remark about leavingat a certain time because the grievor hadalready left. This was inconsistent with theovertime claimed for that day. Characterized as“time theft” by the employer. There were alsoseveral incidents of insubordination leading up tothe discovery of the falsified overtime claims.The falsified claims and the misconduct wereestablished on the facts.What the arbitrator said: Discharge upheld.Although the employer didn’t engage inprogressive discipline, the arbitrator found thatthe overall impact of the grievor’s conduct madeit difficult to rationalize reinstatement. This wascompounded by post termination conduct. Thisincluded emailing the CEO directly to discredithis manager and to attempt to outline theinjustice of his termination. The grievor alsocontacted the sales manager for a supplier ofthe employer indicating he was going to takedown the employer and the manager herself.The arbitrator found that the grievor’s posttermination conduct put him in a dramaticconflict of interest with his former employer. Hefurther found that reinstatement would be totallyinappropriate in the circumstances.Invista (Canada) Company andCommunications, Energy and PaperGrievorsUnion of Canada (H. Thompson)What happened: Grievor discharged forremoval of company property, specifically aportable generator, without authorization. Theportable generator was never found. TheArbitrator found there was sufficient evidence toconclude on a balance of probabilities that thegrievor had removed the generator. The decisionwas primarily based on established facts andfindings of credibility.What the arbitrator said: Discharge upheld....what is strikingly evident in this uniquecase is [the grievor’s] repeated lack offorthrightness in integral aspects aboutwhat occurred. In my view, this repeatedlack of forthrightness can’t be crediblyreconciled on any principle basis, and isnot without significance.The grievor’s lack of forthrightness was anattempt to conceal the fact that the grievor didactually take the generator. The grievor hadengaged in serious misconduct. Further, hehadn’t acknowledged his culpability. It wasn’tjust unreasonable in the circumstances toimpose a lesser penalty. Discharge was upheld.- 4 -

Discipline and DischargeHotel-Dieu Greys Hospital and OntarioNurses Association (Joanne Jacobs)What happened: Grievor went off work due toinjuries incurred in a motor vehicle accident.Malingering established on the facts: While ondisability leave, the grievor went on a 10 dayfamily camping trip during which time she wasbicycling and swimming. The assistant directorof human resources testified she had seen thegrievor at her son’s hockey games and lacrossegames and the grievor was sitting, standing,walking, clapping and shouting in a wayinconsistent with her claim to physicallimitations. The mployer conducted surveillancefor over 12 days starting on September 12,2009. Surveillance report showed level of activityinconsistent with grievor’s claimed restrictionsand limitations. Employer believed grievor hadcommitted long term disability (LTD) fraud andthat this would eventually be reflected in thehospital’s insurance premiums. Employerfollowed up with the union to inquire into whetherthe grievor’s capabilities had changed. As of theend of October 2009, they had received noresponse. Employer inquired with the grievordirectly to arrange for a meeting for November 3,2009. The grievor wanted to wait until after anupcoming appointment with her family physicianon November 26, 2009. She said she had beenworking at the gym with a trainer and believedthere would be some changes in her restrictions.Based on this conversation, the employerbelieved that the grievor suspected she hadbeen under surveillance. In the end the meetingdid occur on November 3, 2009. At the meeting,the surveillance was disclosed to the grievor andher employment was terminated.What the arbitrator said: Discharge upheld.Arbitrator found that the grievor had engaged indishonest and fraudulent conduct. As a result,there was no question that the hospital had justcause to discipline. He further concluded that onthe facts there was little to support the grievor’srequest for a substitution of lesser discipline withreinstatement. The following factors were ofinfluence: Grievor not a long-term employee; Conduct premeditated – involvedmisleading employer and healthcareproviders; Grievor didn’t acknowledge wrongdoing– continued deception throughouthearing; No evidence of economic hardship onGrievor or her family; and Grievor destroyed degree of trustrequired to maintain employmentrelationship.Credit Valley Hospital and Canadian Union ofPublic Employees (N. Brathwaite)What happened: Grievor discharged for breachof employer’s code of conduct. In September2010, an adolescent outpatient committedsuicide by jumping from the top of multi-levelparking garage. Grievor, who was assigned toclean up the scene, took pictures with his cellphone and posted them on his Facebook pagewith a caption under each picture. They weredeleted the following day.- 5 -

Discipline and DischargeWhat the arbitrator said: Discharge upheld.The arbitrator noted that hospital policy clearlyset out the critical significance of theconfidentiality of patient information referring to itas “a cornerstone in the present healthcarecontext”. The policy also set out potentialdisciplinary consequences for unauthorizeddisclosure of confidential patient information.The arbitrator found that the grievor was awarethat the suicide victim was a patient of thehospital. Further, the grievor lacked candour withthe hospital in the conduct of the subsequentinvestigation. Even if he hadn’t known that thesuicide victim was a patient, he should’ve actedwith reasonable diligence to maintain theintegrity of confidential information. He should’veacted on the presumption that the suicide victimwas a patient. The arbitrator found that theemployer had established that the grievor hadengaged in culpable misconduct. In consideringwhether a lesser penalty would be just andreasonable, he noted, although there was someelement of the actions being spur of themoment, they are primarily premeditated.Additionally, the grievor wasn’t truly remorsefulor contrite and didn’t fully accept responsibilityfor his misconduct. He also had a “somewhatcheckered disciplinary record”.The Grievance of “Mr. Q”What happened: Grievor terminated forviolating employer’s food safety policy. He was ashort service employee who worked as a meatsmokehouse operator. One of his duties wasmonitoring temperature charts; a particularlyimportant task for food safety. He was found tobe entering wrong temperatures on theworksheets. Despite progressive discipline, thegrievor continued to make this error.What the arbitrator said: Discharge upheld.The arbitrator noted that there was little tomitigate the grievor’s repeated misconduct.However, he was honest in the investigations,apologized and faced consequences in eachinstance of wrongdoing. Due to his age, it wasunlikely he would find suitable alternative work.Discharge from employment would imposesubstantial hardship on his family including ason in college and aging parents that hefinancially supported. Still, the arbitrator foundthat reinstatement wouldn’t be appropriate in thecircumstances. The discharge was upheld.City of Toronto and Canadian Union of PublicEmployees (Carl Bodnar)What happened: Grievor employed as trainingand development specialist in taxi section oflicensing services of Toronto. Grievor also had apart time job at a community college. The cityclaimed copyright in manuals used for taxitraining courses. Over the years, city hadprovided the manual to cities of Ottawa andCalgary for a fee and had attempted to sell itstraining expertise elsewhere. The grievor’ssupervisor asked for copies of the trainingmanuals used by the grievor at the college. Afterreviewing the manuals, the supervisor concludedthe grievor had plagiarized substantial portionsof the city’s training manuals and dischargedhim. Following the discharge, the supervisorexamined the grievor’s computer and foundsubstantial portions of training materials storedthere, which in his opinion should not have been.A review of his email indicated that he had beenconducting business with a college during time- 6 -

Discipline and Dischargehe was supposed to be working for the city. Hewas also developing and delivering a taxi cabdriver course for the City of Pickering. Thegrievor conceded with respect to several trainingmodules that he had cut and pasted theinformation in their entirety.What the arbitrator said: Discharge upheld.The arbitrator concluded that it was clear on theevidence that the grievor had plagiarizedsignificant portions of the training manual. Doingso placed the grievor in a conflict of interest withhis employer and the city had just cause todiscipline. The arbitrator concluded there wereinsufficient mitigating circumstances to justifyimposing a lesser penalty despite the grievor’sseniority and clean disciplinary record. Heconcluded this on the basis that: Grievor never admitted to plagiarizingthe materials; Grievor didn’t take responsibility foractions; Grievor’s explanations varied –sometimes he claimed there wasnothing wrong with taking the materialsand other times he claimed that he didn’ttake it at all, but reproduced it frommemory; Never disclosed to his manager that hewas using city materials; and Emails from grievor showed he wasconcerned that others might find outabout his use of these materials.Employer LossesCook and Louisbourg Pipelines (2011:NBARB)What Happened: Grievor was laboureremployed since 2004 with no prior discipline.The employer was in the business of installingnational gas pipelines to residential andcommercial properties in New Brunswick. In July2010, grievor was asked if he would act as a“boxman”. He said no because he hadn’t beenhired as a boxman, wasn’t paid as such and mayor may not have training. Three days later,grievor was discharged for refusal without anyjustification to work as a boxman.What the court said: Reinstatement with fullback pay. The employer didn’t order the grievorto perform the tasks of a boxman – therefore theemployer had no justification to discipline thegrievor:The law is clear, that for an employee to beinsubordinate he or she must refuse tofollow an order. This means that theemployer must establish that an authorizedmember of management has given theemployee a clear order and that theemployee understood the order.CUPE, Local 2330 and Highland CommunityResidential Services (HCRS) (2012: NSARB)What happened: Grievor, a 16-year residentialcounsellor, was terminated for: smoking on the- 7 -

Discipline and Dischargejob; failure to follow protocols respecting hiswork as a residential counsellor; and a threat tothe executive director. In short, because theemployer concluded that the employmentrelationship had broken down.What the arbitrator said: Grievor reinstatedwithout back pay and without loss of seniority oncertain conditions. Management played aninnocent role in creating, for the grievor, a senseof being poked or picked upon that led to stressand thoughts that he later expressed. Thesethreats might be seen as a cry for help and thismitigated or blunted the extent of the threat. Themedical report was clear that the grievor wasn’ta threat.In the end this is a close case. As I havediscussed above, discipline was warrantedfor both the failure to follow protocols andthe threat. Also weighing against thegrievor is the fact that he made a threatthat was communicated to his employer,causing some fear and upset with at leastone of his supervisors. Weighing againsthim too is the fact that he continues todemonstrate little willingness to acceptresponsibility for his actions or to doanything that would demonstrate to thosehe threatened (albeit indirectly) that he wasinterested in changing his behaviour.On the other hand and weighing in hisfavour is the fact that he (grievor) hadworked hard to improve in his years as aresidential counsellor. He has had goodperformance reviews in the past. He hasnever actually assaulted or threatenedanyone at HCRS – whether supervisor, cogrievoror resident – in the years he hasworked there. Moreover, the employer didhave a role in creating or exacerbating thestress under which he was labouring....Toronto Transit Commission and MarkMcIlroyWhat happened: The grievor was dischargedfrom employment after two supervisors smelledalcohol on his breath at work. A specific penaltyclause was included in the collective agreementthat allowed for discharge where an employeewas found to be impaired while on duty byreason of consumption of an intoxicatingbeverage. The grievor had five years seniorityand no disciplinary record. The day of theincident a senior employee complained to thesupervisor that the grievor “reeked of alcohol”.The supervisor then confirmed in person that theemployee smelled of alcohol. The initialsupervisor had a second supervisor confirm herown observations. The union steward requestedthat the grievor be re-assigned to a non-drivingjob for the day. The supervisor believed thegrievor wasn’t fit for any of his duties andrelieved him of his duties for the day anddischarged the grievor the following day. Oncross-examination, the supervisor concededrelieving him of his duties was erring on the sideof caution. She smelled alcohol on his breath,but he wasn’t otherwise showing signs of beingunder the influence. The grievor claimed he hadfour regular sized cans of beer the night before,but didn’t drink anything that morning. Thesenior manager involved decided to impose thespecific penalty of discharge on his belief thatthe supervisor wouldn’t still be able to smellalcohol if the last beer had been consumed thenight before. The employer also relied on- 8 -

Discipline and Dischargetestimony from the supervisor that the grievor’seyes were red or bloodshot.What the arbitrator said: Discharge set aside.The arbitrator held that he couldn’t include on abalance of probabilities that the grievor wasimpaired on the morning in question. Thesupervisor’s testimony was consistent with herdetailed report from that day, except there wasno mention of red eyes in the report. The caselaw showed that something more was neededthan the smell of alcohol to establish impairmentby observation. He concluded that due to thesmell it was proper for the supervisor to send thegrievor home and relieve him of the duties forthe day. However, this was insufficient towarrant the imposition of specific penalty ofdischarge the next day and orderedreinstatement with no loss of seniority andcompensation subject to the duty to mitigate.Toronto Community Housing Corporationand TCEU, Local 416 (Winson Duncan –Grievor)What happened: Grievor discharged forabusive use of a work related cell phone. Thegrievor was a senior superintendent and a cellphone was required to perform his job duties. Hehad no landline or personal cell phone at thetime. He had a common law partner and a childwith a serious medical condition. Both weredeported to St. Vincent’s and he began using theemployer-supplied cell phone to communicatewith them. The employer’s cell phone policyallowed this, as long as the employeereimbursed any charges incurred for personaluse. Extensive long distance chargesaccumulated. The employer held a meeting withthe grievor and asked for (1) repayment and (2)- 9 -for the grievor’s agreement that he wouldn’t usethe phone for long distance calls. The grievormade some attempts to set up a repaymentplan, but for unknown reasons the repaymentplan didn’t get implemented. He continued touse the cell phone for long distance calls to hisfamily. Six months later the bill had accumulatedto over $8,000. Another meeting was held andthe same promises were made. Again, thegrievor took steps to set up a repayment plan,again this failed on the employer’s end andagain the grievor continued to use the phone forlong distance calls. At the time of his discharge,the bill was over $12,000. The employer neveractually showed the grievor a copy of the bills,but he accepted the totals. At the dischargemeeting, the union steward referenced therepayment plan that had been set up through thesupervisor, but the monthly charges for recentuse far exceeded the monthly repaymentsagreed to.What the court said: The arbitrator agreed thatdiscipline was warranted, but substituted alesser penalty he believed was just andreasonable in the circumstances havingconsidered the following facts: The issue of personal use didn’t ariseuntil his spouse was deported; The policy of the employer was thatemployees could use the cell phone forpersonal use as long as they reimbursethe employer for any costs incurred; The grievor frequently used calling cardsto cover the cost of the phone calls anddidn’t have an alternative phone line touse; and

Discipline and Discharge The grievor had never seen a copy of was directed to sign documentation required tothe charges before the hearing and was ensure requisite reimbursement payments wereunaware of how quickly charges were withheld at source.accumulating for even relatively briefcalls.Maple Leaf Sports and Entertainment andTeamsters Local Union 847 (Wayne Nichols)Mitigating factors included the following:What happened: Grievor terminated pursuant to The grievor was 50 years of age and a “deemed termination clause” in the collectivehad over 20 years of service;agreement. The grievor was employed with theemployer on a part-time basis. The collective He accepted his obligation to reimburse agreement required him to work a certainthe employer (although attempts atamount over a one-year period to maintain hisrepayment were unsuccessful);employment. He received a warning at the sixmonthmark that his absence percentage He expressed remorse and didn’tcalculation was below the threshold required tochallenge the employer’s calculation;avoid the deemed termination clause of theandcollective agreement. The grievor called in sickdue to a headache the day before year-end. This The reasons for the calls weren’twas included in the calculation and the deemedfrivolous.termination provision was triggered. The grievorPoints counting against the grievor included the grieved on the basis that the sick day should notfollowing:count against him as he had a doctor’s note.The arbitrator noted that in the collective He continued to make outgoing longagreement the parties had agreed that absencesdistance calls after agreeing not to do due to serious illness or bereavement wouldn’tso.be included in the calculation of the percentageabsence rate under the deemed terminationThe arbitrator found that although the grievor clause. The employer argued that a headachehad engaged in serious misconduct, there were wasn’t a serious illness as set out in theinsufficient grounds to justify discharge in the collective agreement.circumstances. There were no issues withrespect to how the grievor performed his duties. What the arbitrator said: Reinstated. TheThe misconduct didn’t have a direct relationship arbitrator applied the provision of theto his suitability for the particular job performed. Employment Standards Act which referred toThe arbitrator rejected the submission that “personal illness”, not serious illness anddemotion was a suitable penalty. He also found precluded the employer from including the sickthat reinstatement without back pay would be day in the absence percentage calculation. Atoo harsh and disproportionate and reinstated recalculation then dropped the grievor’ssubject to a six-month suspension. The grievor- 10 -

Discipline and Dischargepercentage rate below the threshold requiring prohibited by an employer policy. Since thethat the grievor be reinstated.employee didn’t resign, the onus was on thecompany to establish just cause for discharge.Loblaws Supermarkets Limited and United The employer established that the employee hadand Commercial Grievors Canada (Wendy access to confidential time sensitive companyChapman)pharmacy information and that the subsequentemployer was a competitor. The employeeWhat happened: The grievor was a pharmacyplaced herself in a clear conflict of interest whenassistant who took a full-time job with ashe took the full-time job with the competitor.competitor. She resigned her full-time positionHowever, some evidence was accepted that thewith the employer, but requested to maintaincompany had acted inconsistently in the pastpart-time hours. The employer had a meetingwith respect to treatment of employees who hadwith her and a union representative in whichplaced themselves in similar situations. Thethey conveyed the message that they couldarbitrator allowed the grievance. The arbitratoraccept her resignation and request for part timereinstated the grievor to a part-time position withhours. However, it was unacceptable for her tothe employer without loss of seniority, subject tomaintain the same position if she would bean agreement that she maintains theworking for a competitor. Subsequently, by letterconfidentiality of all company pharmacythe employer proposed that she maintain herbusiness information.part-time hours and union seniority, but in a noncompetitiveposition in their general department Cargill Limited and United Food andi.e. working as a health and beauty advisor. Commercial Grievors Canada, Local 175 (J.When the employee didn’t respond to this Donovan)proposal, the employer took this to mean thatthe grievor was declining the proposal. The What happened: Grievor employed at meatemployer then subsequently terminated her processing plant. He was 50 years old at theemployment. The employer testified that they time of his discharge with no disciplinary record.considered having an employee work for a The grievor took an eight-month medical leave.competitor in the same position to be a conflict When he returned, the employer said someof interest. The employer had a Code of changes had taken place. A second location hadBusiness Conduct to this effect. Grievors weren’t closed and some of the employees wererequired to sign off on this code, but the relocated to the grievor’s location as temporarydocument is brought to the attention of employees. Also, new training requirements hadbargaining unit employees.been implemented for operating forklifts andother machinery, which the grievor had beenWhat the arbitrator said: Reinstate grievor. operating for many years without having hadArbitrator noted that employees are obliged to training. He was reassigned until he couldnot engage in activities that conflict or appear to complete the training, which didn’t make himconflict with their employer’s interests. Further, happy. On two occasions, he made commentsthis duty exists whether or not it’s expressly- 11 -

Discipline and Dischargeabout being fed-up and wanting to hit someonewhen he got his license back – the first commentwas made to co-grievors and the second to asupervisor. His animosity was directed at the relocatedgrievors. He perceived that they didn’tfollow safety procedures that were established inthe workplace. The co-grievors and supervisorbelieved he was venting and didn’t actuallyintend violence. However, they reported thecomments. In a third incident, the grievor madeharassing comments towards one of thetemporary employees in particular. He was senthome for the day. He was later telephoned andasked to return to the guard hut. He was met byhis supervisor and a union representative andwas discharged.What the court said: Suspension substitutedfor discharge. The arbitrator found that thegrievor’s comments warranted discipline. Thearbitrator considered that comments made ontwo occasions were threatening andinappropriate, but didn’t appear to be“premeditated”. The grievor made apologies forthe comments he made to his co-grievors, butnot for those made to his supervisor. Thecomments made to the temporary employee,were inappropriate, but in response to concernsabout the safety of that persons driving. Thearbitrator was satisfied that it was safe for thegrievor to remain the workplace. The grievorwas reinstated, with lost wages and benefits. Alesser penalty of a five-day suspension wasimposed.Employer and Employee Win Some / Lose SomeCAW Local 1256 and AutomodularCorporation (Juniper; Almonte; Esposito)What happened: Three heavy machineryoperators were discharged after being seenusing illegal drugs (marijuana) on companyproperty during a shift. A representative of theemployer testified that termination was the onlypenalty considered in response to the drug use.They considered the conduct to be “so grossand serious” that a lesser penalty wasn’tappropriate in the circumstances.What the arbitrator said: One dischargeupheld; two reinstated subject to last chanceagreements.One grievor failed to appear for arbitration onthree successive dates. His grievance wasdismissed.The second grievor had a clean disciplinaryrecord, no issues with absenteeism or tardiness,and had never received even a verbal reprimandconcerning job performance. He wasn’t givenany opportunity to respond to the employer’sallegations. However, at the hearing, heconceded to smoking marijuana at work once ortwice. He testified that he smoked only a smallamount and was never impaired. He exhibitedremorsefulness and apologized for his conduct.He also testified that he hadn’t used marijuana inthe previous six to eight months, nor did he missit or need it. The third grievor also had a cleandisciplinary record, was regular and punctual in- 12 -