'With an LCA, the worker is boxed in, and that's the whole idea,' says lawyer
Three instances of misconduct on the same shift were sufficient to terminate the employment of a worker on a last-chance agreement, an arbitrator has ruled.
Communication with employees with a disciplinary history and drawing up a last-chance agreement (LCA) can make things easier for employers if it comes time to make a decision on termination, according to Sharaf Sultan, principal of Sultan Lawyers in Toronto.
“Communication with employees and an effort on the part of an employer to make the relationship work - an LCA is a formal way to do that – will show an arbitrator or a court that the employer is serious about maintaining the relationship,” says Sultan. “Then, more often than not, the onus will informally be on the employee to demonstrate that they also have been making real efforts - and that's often where employees who just aren’t good fits fail.”
Maple Leaf Consumer Foods is a food company based in Mississauga, Ont. It hired the worker as a millwright in the maintenance department at its Mississauga plant around 2001.
In early 2019, Maple Leaf terminated the worker’s employment for time theft stemming from his being away from his work area for excessive periods of time. However, the union reached an agreement with the company that reinstated the worker with a five-day suspension on his record. However, he was subject to an LCA that would be in effect for 12 months.
Last-chance agreement
The LCA stated that the company, the union, and the worker agreed that if the worker violated the LCA with further misconduct including time theft, he would be immediately terminated without a grievance. The LCA removed an arbitrator’s jurisdiction to mitigate the penalty in the event of a breach, permitting only a determination of whether a violation occurred.
On Feb. 22, 2020, the worker was scheduled to work a 12-hour overtime shift with two 15-minute breaks and a 30-minute lunch period. According to the worker, he was busy, so he took two 30-minute breaks instead as there were no set times to take breaks. It was a Saturday, so there was no production happening and he was working alone fixing a conveyor belt with small welds.
It was company policy to lock out machinery by cutting the power to it before it was worked on, but in this case the worker didn’t. Because he was working alone, he felt that it would have taken him too long to do so, so he only pushed the stop button to repair the belt. According to the worker, it was normal practice for millwrights to not lock out machinery for spot welds, and Maple Leaf was aware of and condoned the practice.
The machinery was in a food production area of the plant and the company’s good manufacturing practices (GMP) required employees to wash their hands before entering such areas. The worker washed his hands thoroughly at the start of his shift, but he didn’t do so when he left and returned.
Management reviewed video surveillance footage that showed the worker failing to lock out the machinery and not washing his hands when entering the food production area. It also appeared that the worker was away from his work area for long periods of time, adding up to eight hours over the course of the 12-hour shift.
Worker denied misconduct
The worker was interviewed and disagreed that he had stolen time, as his workload was so busy that he didn’t have time for extended breaks. He noted that there were no surveillance cameras in the lunchroom and said he had used a different exit door than where the camera was. However, he had no explanation for his absence from his work area, saying he had been working and the camera wasn’t reliable.
The worker acknowledged Maple Leaf’s lockout policies and the legal requirement to follow them, but he maintained that millwrights often made quick repairs without cutting power and this was condoned by management. He admitted that he didn’t always wash his hands when re-entering the food production area, as it was unnecessary while servicing idle equipment.
On March 10, Maple Leaf terminated the worker’s employment, with the termination letter citing “time theft and GMP violation.” The company alleged three breaches of the LCA during the 12-hour shift - approximately eight hours of time theft, failure to lock out machinery prior to repairs, and failure to follow GMP by not washing his hands upon entering the food production area.
The union grieved the termination.
The arbitrator noted that the purpose of an LCA is “to resolve an outstanding discharge grievance by putting an employee back to work on very strict terms.” The LCA in this case was clear that any performance issues would be grounds for immediate termination of employment, including theft of company time, so the arbitrator’s only role was to decide whether the worker’s actions breached the LCA, not the appropriateness of the discipline, the arbitrator said.
Breach of agreement
The arbitrator found that Maple Leaf had proven all three breaches on a balance of probabilities. The video footage didn’t support the worker’s explanation that he had too much work to take lengthy breaks, as he wasn’t at his work area for lengthy periods of time, the arbitrator said, adding that although there wasn’t a camera in the lunchroom, it was “more likely than not that he was in the lunchroom” when he wasn’t at his post. In the end, it didn’t matter where the worker was because it was clear that he wasn’t working, the arbitrator said.
“Saying that video footage is not accurate, but without having anything really credible to explain his actions or fully addressing and giving some response that makes sense to counter the evidence wasn’t much of an effort in [the worker’s] defense,” says Sultan. “So I think any one of [the instances of misconduct] could have provided an arbitrator with enough confidence that it was reasonable to conclude that the employer had just cause and the worker hadn't demonstrated good faith.”
In addition, the arbitrator didn’t accept the worker’s contention that lockout safety procedures and hygiene GMP were only selectively enforced by Maple Leaf, noting the mandatory nature of hygiene in a food production environment and the importance of safety in a workplace with machinery.
With the LCA in place, cause for dismissal came down to the worker’s lack of credibility and forthrightness, according to Sultan.
“It didn’t appear that the worker was being forthright or taking accountability, and especially when you're talking about a last-chance agreement - trust, accountability, credibility - all these things tend to drive the decisions, unless an employee does something highly negligent,” he says. “Arbitrators tend to take these cases quite seriously, because there's a big difference between discipline and dismissal, so it's really a question of, does this person deserve to continue to be employed?”
Termination only option
With the conditions of the LCA breached, the arbitrator noted that he had no jurisdiction to vary the discipline, which was termination as agreed upon by the parties. The grievance was dismissed.
“The LCA stated that any further performance infractions, including theft of company time, will be grounds for immediate termination of employment - so it's not like the arbitrator had a lot of flexibility,” says Sultan. “The only way that the arbitrator could potentially vary the discipline is if it was an honest mistake or something that shouldn't be considered a violation.”
“You can interpret your way out of the LCA, but it requires more effort – with an LCA, the worker is boxed in, and that's the whole idea,” adds Sultan. “So the worker’s responses weren’t the type of responses that would, in most cases, provide an arbitrator with enough to get around an LCA.”
When an employee has a disciplinary history, the effort an employer makes in drafting an LCA can reduce the effort it needs to make to justify dismissal later on, says Sultan.
“An employee who's not accountable is more often than not going to fail when they're being asked to make an effort to challenge a dismissal under an LCA,” he says. “So it's an investment on the front end, but it pays dividends on the back end – in this case was it was really up to the worker to respond, because there wasn't a lot the employer needed to do as the process was in place.”
