Rejecting as antiquated the proposition that automatic termination is the appropriate penalty in all cases for workers caught sleeping on the job, an arbitrator conditionally reinstated four personal support workers (PSWs) terminated by a long-term care facility.
Evidently surprised during an early morning, “shock and awe” visit by new managers, four PSWs at a 224-bed facility were discovered in various stages of repose.
One was sleeping in a darkened room, reclined, shoes removed on an improvised bed formed with chairs. Another was discovered on a chair with blankets, “sleepy-faced” after being nudged to wakefulness by yet another worker who, after being surprised in a reclined position with eyes closed, awoke to alert her colleague who was around the corner. Another PSW was discovered in a hallway in another part of the facility sleeping on two opposing chairs.
During investigative meetings conducted later in the day, all four denied that they had been sleeping. The workers were fired and the union grieved.
Alleged neglect
Sleeping on the job in contravention of explicit facility policy was sufficient to justify the terminations, the employer said. The workers were aware of the policy and had signed off on it. Moreover, this was not a case where the workers had inadvertently dozed off while at work. The PSWs had formed makeshift beds with the intent to sleep — behaviour in the circumstances that raised the spectre of neglect of resident care. Bald-faced denials after the fact only served to undermine their credibility and the employer’s ability to trust them working with vulnerable residents.
The union noted that the new regime at the workplace was different from the one enforced by the previous management team, which did not apply the rules as fastidiously as the new team. The union questioned the real motivation behind management’s desire for impromptu, late-night introductions to the night staff — a tactic that the union likened to “shock and awe.” In the circumstances, inconsistent testimony was understandable, the union argued, because the workers were caught unawares and were nervous.
Lying under oath
The arbitrator rejected that assessment. “The dishonesty of the grievors at various levels is most disturbing. One can never excuse lying to an employer and then compounding the lie by acting aggressively and then denying that behaviour. Nowhere in any of the Grievor’s testimonies was there even a tiny piece of an admission of wrongdoing or a scintilla of contrition. Arbitrators do not appreciate being lied to … I do not accept that the Grievor’s did not know they were lying under oath, they knew it and continued to do it even when being caught in obvious lies. This is most troubling. An employer has the right to expect to be told the truth … the trust factor in the relationship is the glue that keeps it together. Without trust, there can be no meaningful relationship.”
Conditional reinstatements
Despite a finding that the employer had sufficient cause to terminate the workers for sleeping on the job and then lying about it, the arbitrator substituted the terminations for conditional reinstatements.
First, the arbitrator rejected any allegations of abuse. This was an extremely serious charge for which there was no evidence beyond the employer’s assertion that for a PSW, sleeping on the job is tantamount to abuse. There was no record of complaints from the residents about the care they received or any evidence that any of the residents had suffered because of the actions or inactions of the workers in question.
Second, the workers did not admit to any prior discipline, and the employer was unable to produce reliable records to establish prior discipline.
Third, with respect to their mendacity and lack of remorse, while not condoning the tactic, the arbitrator reasoned that the workers had little option but to lie in a situation where their jobs were on the line and it was their word against the word of their managers.
“Strangers to the truth”
Left with a “tough decision,” the arbitrator addressed the “hard question … of whether it is appropriate to return four individuals to work who are essentially strangers to the truth and who have little regard for the principle of honest reporting.”
The arbitrator found that prior poor supervision, lax discipline and inadequate record-keeping had created a culture of disrespect for rules at the facility and in that context, the early morning visit to the facility was likely no accident. While the arbitrator could see the value of the employer’s “shock and awe” tactics to clear the workplace of poor performers and serve notice to those who remained, “this clearance has to be absolutely justified and only after a fair and sober evaluation of each individuals’ behaviour and past history is performed.”
The workers were reinstated with strict conditions and on a “last chance” basis.
