The grievor was under a last chance agreement when he was found smoking. The union argued that the infraction did not even call for discipline. The arbitrator found that it did and the grievor's termination was upheld.
After returning to work under the terms of a conditional reinstatement, a worker was fired after he was observed smoking outside the plant in a non-designated area.
The union grieved.
K.W. worked at a steel processing plant. Hired in 1998, K.W. was working as a Bander in the company’s Storage/CTL Department when he was fired for the first time on July 7, 2011.
K.W. had difficulty returning to work after sustaining a workplace injury in 2008. He was reinjured a number of times and cycled through modified duties and return-to-work programs a few times.
Discipline on his record at the time included two written warnings, two one-day suspensions, one three-day suspension and one five-day suspension.
The union grieved K.W.’s July termination and he was reinstated conditionally.
The terms of the reinstatement order required K.W. to comply with the terms of the modified work and rehabilitation programs provided for him. K.W. was also cautioned that any failure to comply with the terms of the conditional reinstatement order would result in termination. K.W. would also be fired if he engaged in any culpable misconduct for two years from the time of his reinstatement.
When K.W. returned to work on Jan. 27, 2012, he met with a supervisor and a union representative to go over the terms of his reinstatement agreement.
Impromptu smoke break
About six weeks later, K.W. arrived at work shortly before the start of his 3 p.m. shift. He went into the plant, but then exited again to retrieve something he had forgotten in his car. As he was returning to the plant, he met an acquaintance near the plant entrance. The two began talking and they lit cigarettes. A third employee joined them and also lit up.
The workers were observed by a supervisor and reported. The company had a strict policy against smoking except in designated smoking areas.
K.W. was fired. The other two workers were disciplined.
The employer argued that K.W. had clearly violated the company’s smoking policy. Discipline was appropriate in the circumstances, the employer said, and the discipline had the effect of triggering the mandated termination provisions in the last chance agreement. The only question was whether or not K.W. had violated the company’s smoking policy and K.W. did not deny that he had. Termination was appropriate, the employer said.
Last chance
The union accepted that the Arbitrator was prevented by the last chance agreement from reworking the termination provisions in the agreement. However, the union said that it was in the Arbitrator’s power to find that the offence committed by K.W. did not necessarily call for discipline.
The Arbitrator disagreed.
“It is entirely clear to me, and it is not denied by the grievor, that he was smoking on employer premises, and that he was not within a designated smoking area. Pursuant to the employer’s smoking policy (which is part of the collective agreement) the minimum penalty for such an offence is a written warning. It is clear therefore that the grievor must, at a minimum, deserve a written warning. However, pursuant to [the earlier award], and to the agreement of the parties, the matter cannot end there. Even a written warning for smoking falls within the scope of ‘any culpable misconduct for which any discipline would normally be appropriate,’ and is an offence for which discipline can properly be imposed. Accordingly, I lack jurisdiction to mitigate the penalty and must therefore uphold the discharge.”
Nor was the Arbitrator disposed to alter the penalty.
“I can only add that, in light of the grievor’s disciplinary record; the short time between his reinstatement and this offence; and the gravity with which the parties have invested the smoking policy, I would not have mitigated the grievor’s termination even if I had jurisdiction to do so.”
The grievance was dismissed.
