The grievor was terminated when he was found sleeping on the job. However, the arbitrator found that the company's policy defined the infraction as one that could be dealt with using progressive discipline. The grievor was reinstated with a long suspension.
A security guard at a uranium conversion plant was fired after he was caught sleeping on the job.
R.D. was a security guard at the plant where he had worked for 16 years. There was no discipline on his record.
R.D. was also a “Group Leader.” The Group Leader designation came with a pay premium and some extra responsibilities, including directing staff. R.D. had also undergone additional training in order to serve as part of the plant’s Emergency Response Team.
The plant was licensed under the Nuclear Safety and Control Act and regulated by the Canadian Nuclear Safety Commission. Safety and security standards at the plant were established and maintained according to the compliance requirements of the Nuclear Security Regulations under the Act.
Surprise security audit
R.D. was Group Leader for the guard crew working the overnight shift on April 17, 2011. That night was also chosen for the first “security readiness test and audit,” which was conducted by managers from the Security Department. Employees were not alerted to the date of the test — they had been warned only that a test was coming.
Two managers breached the plant’s security perimeter at 3:30 a.m. The managers were not intercepted. When they entered the main guardhouse, they came upon R.D. and another guard. Both were sleeping. Both were fully reclined with their feet up on the desk. Their chairs were pushed together side by side. R.D. had removed his safety boots. The other guard was using her jacket as a blanket. Movie DVDs were on the counter.
R.D. was fired. The union grieved.
The employer said termination was warranted in view of R.D.’s serious dereliction of duty. He was found sleeping on the job and the worker he was charged with supervising was also sleeping. Their failure to remain vigilant and attend to the critical monitoring and co-ordinating role of the main guardhouse had compromised perimeter security.
The workers hadn’t just fallen asleep at their posts, the employer said. They were “nesting.” In other words, they had intended to go to sleep and had made efforts to make themselves more comfortable. The workers had used the employer’s computer to watch a move. This was a violation of company policy. As well, the managers discovered R.D. had already completed the night’s shift log before the shift was over. The employer said this constituted a falsification of company records.
The cumulative effect of all these breaches of company practices and R.D.’s serious dereliction of duty warranted termination, the employer said.
The union acknowledged the employer’s interest in security and did not deny that R.D. was caught sleeping.
However, the union denied R.D. was nesting. Having just quit smoking, R.D. had spontaneously fallen asleep as a result of being deprived of his usual mid-shift stimulant. He had removed his boots only because his feet hurt. Whatever the employer had said about its policies prohibiting the watching of DVDs on the overnight shift, the practice was commonplace and the understood direction was that workers were not to watch movies on the large monitor. They were not, the union said.
It was also common practice to fill out the shift log when time permitted and then amend it if, and as, necessary, the union said.
Employer stuck with its policy
Chiefly, however, the union said the employer’s disciplinary response was excessive and out of step with its own written disciplinary policy. The employer made a clear distinction between two groups of workplace offences. The first group of offences, which contained sleeping on the job, was identified as warranting “progressive steps of corrective discipline.” By contrast, offences in the second group were considered “serious infractions” that could merit immediate termination.
In this case, the union said, the employer was stuck with its own policy. Discipline for such a first offence was warranted but not termination.
The Arbitrator agreed.
“In my view, the Employer, but for its Disciplinary Procedure/Policy, would have had clear just cause for terminating the Grievor. The Grievor’s falling asleep and apparent nesting, given his duties and the potential catastrophic consequences of his failure to attend diligently to them, is, on the legal standard, just cause for termination. His service, record, and family circumstances would not have been sufficient to mitigate the penalty.”
The Arbitrator acknowledged the employer had also adopted “Standing Orders” for guard duty in 2004 that prohibited sleeping on the job. Penalties for violations of the Standing Orders contemplated disciplinary action up to and including termination.
However, it was clear these orders were not as widely known.
“I have taken these orders into account. While they lend support to a harsh penalty, unlike the Employer’s discipline procedure, I can’t find that they are as notorious, as the former. As a result, I am unable to find that the termination should be upheld.”
R.D. was to be reinstated after a one-year suspension without pay. He was demoted to the position Plant Guard and subject to the terms of a two-year last chance agreement that provided for his immediate termination in the event of any serious workplace infractions, including sleeping on the job, for the duration of the agreement.
Reference: Cameco Corporation and United Steelworkers, Local 8562. Dana Randall — Sole Arbitrator. Hugh Dyer for the Employer. Kevon Stewart for the Union. Jan. 25, 2012. 10 pp.
