Worker claimed personal problems affected his performance
An arbitrator has upheld the termination of a troubled worker who was on his second “last chance” agreement.
The worker was employed with GE Hitachi Nuclear Energy Canada, an energy technology company. He was considered a hard worker, but he had problems with insubordinate and threatening behaviour, as well as attendance issues and other misconduct, for which he was disciplined multiple times to the point where GE drew up a last chance agreement.
In July 2011, the worker’s employment was terminated for “gross insubordination and threatening behaviour to his manager, which violated the last chance agreement. However, the union grieved the termination and negotiations led to another last chance agreement, which was signed on June 12, 2012. It was agreed GE had just cause to dismiss the worker, but they came to an agreement to allow for his reinstatement for one last chance.
The agreement stipulated the worker had to complete an anger management program and comply with all the company’s regulations and policies. He also agreed to “fully perform all duties and responsibilities of his position as directed by members of management” and to maintain an absenteeism level no more than the employee average. The agreement went on to state it would be applied “in the strictest manner” and failure to comply would result in “the immediate termination” of the worker’s employment.
After returning to work, the worker called in sick five times without explanation over the next five months. One day, he didn’t show up and didn’t call in and another day he was caught not wearing proper safety equipment. Then, on Nov. 21, 2012, the worker was heard speaking negatively about other employees and using inappropriate language.
The worker was told GE considered his behaviour in violation of the last chance agreement and had sufficient grounds to fire him. However, the company recognized the worker was having personal problems and frustration with his job, so he was referred to the employee assistance program and told any more violations of the last chance agreement would result in immediate termination.
However, the worker was absent for seven days in the first two months of 2013, with an explanation for only one of the days. There were also more incidents of insubordination and a breach of safety, so GE terminated the worker’s employment on March 21, 2012.
The union grieved the dismissal, arguing the worker wasn’t disciplined for any of the misconduct that followed the June 2012 last chance agreement. In addition, it said the personal stress he was under, which GE knew about, was a factor and the company should have given him more time to improve. A six-month period was too short of a time to show he could abide by the terms of the last chance agreement, said the union.
The arbitrator acknowledged the worker’s personal problems may have had a negative impact on his ability to attend work, but found he had been given plenty of opportunity to improve. He was on his second last chance agreement, after already being terminated and then reinstated, so he was well aware of the precarious position he was in. Also, his absenteeism rate significantly over the average rate — 9.17 per cent in the six months since his last chance agreement, with the average at 5.66 per cent (2.63 per cent when removing disability and workers’ compensation leaves).
