The company had put a policy in place that employees using personal electronic devices could be discipline up to termination. There was to be zero tolerance. The union grieved, claiming the discipline was too harsh. The arbitrator allowed the policy, pointing out that termination would be a last resort and that employees could still grieve the discipline.
A railway company introduced a zero tolerance policy on the inappropriate use of personal electronic devices. Provisions included automatic discharge for workers who willfully violated the policy. The union grieved.
In November 2010, the company president and chief executive officer addressed a letter to all employees outlining a new policy on the use of personal electronic devices, such as cell phones.
The letter referenced growing safety concerns in the face of emerging scientific consensus on the risks associated with “distracted driving.” Consequently, the employer was adopting a zero tolerance policy for inappropriate use of such devices for any employees working in an operational environment.
The letter also said this: “Any [company] employee who willfully violates our policy on the use of personal electronic devices in our operational environment will be dismissed.”
Union says policy is unreasonable
The union grieved the policy, arguing that the automatic dismissal provision in the policy was unreasonable and a violation of the collective agreement.
The union said that an automatic dismissal under this policy would not meet the standard of just cause. For any discipline, the union said, it was necessary to undertake a broader examination to determine whether or not there had been a violation of a particular rule or policy and whether or not mitigating factors such as length of service and/or previous discipline were applicable.
The union contended that the policy was analogous to an earlier policy proposed by the employer. That policy provided for automatic termination in the event that an employee tested positive for drugs.
However, that policy was found to be unreasonable because positive drug tests do not indicate either the level of the subject’s impairment at the time or when a particular substance was ingested. That policy was found to be in violation of the collective agreement and ruled null and void.
The Arbitrator disagreed with the union’s analysis. Irrespective of the president’s letter, the Arbitrator said that the Compliance portion of the proposed policy referenced discipline “up to and including suspension or dismissal.” The Compliance section also referenced the involvement of supervisors in mentoring and disciplining employees who failed to comply. This indicated that discharge was not automatic in all cases, the Arbitrator said.
The assertion that employees would be dismissed for violations of the policy was an indication of the company’s presumptive measure of discipline for willful violations of the policy, the Arbitrator said.
The proper analogy was to the company’s policy on using intoxicants while at work, the Arbitrator said.
No bad faith
The proposed policy was not arbitrary, discriminatory or made in bad faith. Given the rising number of accidents involving the use of personal communication devices, the policy was obviously related to a valid business purpose, the Arbitrator said.
“[I] am not persuaded that the policy itself can be said to be in violation of the collective agreement. In my view the Company is entitled to determine the penalty it will apply for a given disciplinary infraction and to communicate the level of that penalty to employees. It is axiomatic, of course that the Company will not have the final say where a collective agreement contains a just cause provision as is the case in the collective agreements here under consideration. At a minimum, however, it puts employees on notice that they risk discharge should they be found to have deliberately violated the Company’s policy.”
The Arbitrator said that it was not a violation of the collective agreement to put employees on notice that the employer would seek to discharge employees who willfully violated a particular rule or policy.
“I take it as implicit that the CEO’s communication must be understood [in] the context of the overall just cause language of the collective agreement and of the broader disciplinary responses which are reflected in the language of the policy itself and that its application would plainly depend on the factual circumstances of any individual case.”
The grievance was dismissed.
