Oversleeping employee blames company “for picking on him”

By Lorna Harris
|Canadian HR Reporter|Last Updated: 11/30/2001

Too late to turn over a new leaf

What employer hasn’t experienced the consistently late employee? No matter how hard one tries, getting these people to show up on time can be a full-time job in itself.

Dealing with such challenging employees can occupy much of the time and energy of both management and union personnel.

All too often the inclination, understandably, is to ignore the problem and hope it will just go away — along with the rule-bending employee. Unfortunately, this strategy rarely works. Instead, handling such free-spirited, undisciplined employees should involve detecting the problem early and then developing and implementing a sound plan of action to cover these situations.

The following arbitration underlines the wisdom of having a clearly stated, flexible policy for behaviour and an equally well-laid-out plan for disciplinary consequences.

At the time of the arbitration in question, the grievor had worked as a stockroom attendant on the midnight shift for about 10 years during which time he had accumulated the astounding total of at least 25 days of suspensions and nearly as many verbal and written warnings — most concerning absences without leave, late entries/early exits and sleeping on the job. In addition, the company provided him with repeated counselling sessions, attendance reviews and offers of assistance in implementing corrective action so as to avoid progressive disciplinary measures.

The final straw occurred shortly after the grievor had attended two grievance sessions (one was about his most recent suspension; the other addressed his unsuccessful application for another job at the plant). Later that same day, the worker reported for his shift one hour and 40 minutes late. The next day, the plant manager terminated his employment.

The union’s representative asked for a three-day suspension as the final step before discharge. He argued that since the company tracked late arrivals/early exits separately from absenteeism and absences without leave, the employee was entitled to one more step in the three-step grievance procedure before discharge. The three steps consisted of oral counselling, then written warning and disciplinary action and finally discharge.

The arbitrator disagreed. She called the company rules both reasonable and consistently enforced.

What made the rules reasonable? In the first place, the company provided its employees with various rules in written form. The expectations of the company regarding attendance were clearly stated in writing beginning with the exact procedure to follow “if you absolutely cannot be at work.”

Next, the company’s stated strategy in response to attendance problems was based on the idea of “corrective, progressive discipline.”

According to evidence presented at the arbitration, there were four steps in the company’s over-all disciplinary system:

1. documented oral counselling;

2. written counselling;

3. written warning and disciplinary action; and

4. termination of employment.

Importantly, each step — especially the initial oral counselling — required documentation. The philosophy behind this approach was stated in the company rules: “This system is designed to make you aware of your violation and provide you ample opportunity to improve in appropriate circumstances.”

As well, the disciplinary system was not a mandatory step-by-step procedure, but was flexible in order to respond to specific circumstances, frequently involving medical and family emergencies. The arbitrator found in this case that the grievor’s attendance infractions were rarely emergencies; in fact, in the final instance before discharge, he had simply overslept.

As the plant manager also pointed out, a flexible disciplinary system takes into account a consideration of the severity of the violation, the quality of the employee’s work, his prior disciplinary record and other relevant factors. Concurring with this philosophy, the arbitrator found that “a rigid process which failed to take into account individual circumstances may well risk a finding that the rules and or their application are unreasonable.”

The company provided an “employee signoff form,” which each employee was to sign to confirm receiving the company rules and understood them. More recently, the company had introduced a new absence reporting procedure to ensure that there was a record of call-in contacts by employees who knew they would be away from work on a given day. Specifically, employees were required to leave “their name, clock number, the shift assigned, reason for absence, and a number where the employee could be reached” in a voice mail message.

At first, the grievor refused to sign the form, a fact that hints at his attitude to his work, although later he did sign it. The arbitrator agreed with the company’s view that the grievor seemed unwilling to take responsibility for his attendance. In giving his evidence, the grievor expressed no regret for sleeping late, blamed the company “for picking on him” and did not accept the reasons the company gave for not assigning him the new job (specifically, his poor attendance record and lack of seniority)

Having concluded that the rules were clearly stated, the arbitrator next considered whether they had been reasonably applied. Referring to the attendance record as “replete with instances” of improper attendance, the arbitrator then noted that his disciplinary record “is replete as well with counselling notations.” According to the arbitrator, “the grievor has, quite simply maintained his sorry record year after year.”

Given the twin pillars of reasonable rules reasonably enforced and well documented, the arbitrator, despite the “valiant” argument by the union’s representative, saw no reason to exercise her discretion to substitute a lesser penalty for the discharge.

As she said, “there is nothing in his demeanour or the evidence before me which would suggest that reinstatement would reform his chronic absences without leave and late arrivals/early leavings.” In fact, after he had been given the benefit of doubt and not terminated a few months previously for yet another absence without leave, he “reported late on another seven occasions.”

Although writing and then enforcing a set of clear rules and procedures for employees may seem cumbersome and time-consuming, the results are frequently worth the effort.

For more information: Worthington Cylinders and the United Steelworkers of America, Ontario Labour Arbitration Board, Susan Tacon – Sole Arbitrator, June 14, 2001.

Lorna Harris is the assistant editor of CHRR’s companion publication CLV Reports, a newsletter that reports on collective bargaining and other issues in labour relations. She can be reached at (416) 298-5141, ext. 2617 or lorna.harris@carswell.com.

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