Worker fired for insubordination, absenteeism
A NUCLEAR PLANT employee has used up his nine lives, an Ontario court judge has ruled.
After breaching the terms of his last chance agreement (LCA), Kerry Soundy was fired from his position at GE Hitachi Nuclear.
The Canadian Auto Workers (CAW) union grieved the termination, arguing the worker needed more time to sort out his domestic difficulties.
While it was acknowledged he was a hard worker, the case began when Soundy became subject to disciplinary measures under the company’s progressive discipline regime.
In the wake of undisclosed incidents, Soundy became subject to the terms of an LCA for "insubordinate, violent and threatening behaviour, as well as unacceptable attendance and other misconduct," arbitrator Paula Knopf said in her decision. But the union disagreed.
In July 2011, Soundy was fired for gross insubordination and threatening behaviour towards a manager. The union grieved the termination and on June 12, 2012, the parties settled on a second LCA.
The terms of Soundy’s conditional reinstatement required him to participate in an anger management program and to comply with plant rules and regulations, as well as perform all duties of the job as directed by his managers. The terms of his reinstatement also required that Soundy not exceed the average level of absenteeism at the plant.
But the period following Soundy’s reinstatement was not without incident.
Between July and November 2012, he called in sick five times and offered no explanations.
Insubordination
On one occasion, he was a no-show. Moreover, there was an instance where he was observed not wearing the required safety equipment.
The issue came to a head on Nov. 21, 2012, after Soundy had been perceived acting in an insubordinate manner.
The next day, he was called into a meeting to discuss his behavior, alongside his union representatives.
His bosses acknowledged Soundy was a hard worker and his personal circumstances were challenging.
However, the employer referenced its concerns about Soundy’s performance since his return and, in particular, his rate of absenteeism. The employer believed it had sufficient grounds to terminate Soundy under the terms of the LCA, but said that in recognition of his difficult circumstances, it instead encouraged him to make use of the employee assistance program (EAP) or any other support available to him.
Soundy was given an ultimatum and told any more violations of the LCA would result in his termination.
He made it through to the end of the year without incident. However, the new year brought back his old ways, and between January and March of 2013 there were seven single-day absences that occurred on either Fridays or Mondays.
But for one of those days — where Soundy said he was providing care for one of his two grandchildren that were in his custody — he had no explanations for his absences.
He was fired on March 21.
His bosses claimed Soundy breached the LCA, and referenced the concerns it had raised in the November meeting along with Soundy’s failure to meet the agreed attendance standard.
The employer said although it was in a position to terminate him for violations of the LCA in November, it had not acted opportunistically. Instead, the employer had consulted with Soundy and the union in an attempt to caution him about the consequences of any further unexplained absences and inappropriate behaviour. Soundy’s pattern of unexplained absences put him significantly above the plant’s six-month attendance average. Thus, termination was warranted, the employer said.
Dedicated grandfather
The union challenged the employer’s reliance on the issues raised in the November meeting. Soundy had not been disciplined in the fall, therefore the employer could not rely on those allegations as just cause for dismissal. Moreover, the six-month window used to measure Soundy’s attendance performance was not adequate, the union argued, adding that the worker deserved more time to get his personal life in order.
The arbitrator disagreed.
Knopf acknowledged Soundy was a hard worker with significant seniority. He was also regarded as a dedicated grandfather who was dealing with family and marital difficulties.
However, Soundy was subject to the terms of an LCA as a consequence of insubordination, threatening and violent behaviour, breach of plant rules and absenteeism.
The arbitrator decided the employer had not been unfair or unreasonable in using a six-month benchmark to assess Soundy’s attendance. Indeed, the arbitrator noted, the employer did not act opportunistically and seize on Soundy’s initial absences, instead of only giving him a warning in November.
Soundy and his local CAW chapter signed the LCA after long and thoughtful discussions. The terms were understood and the seriousness of the consequences were clearly pointed out to Soundy during the November meeting.
The arbitrator was made aware of the need to recognize Soundy’s difficult personal circumstances.
"But even when that is done, we are left with an employer that has addressed the grievor’s personal and family circumstances, applied patience to a series of unexplained and patterned absences that well exceed the plant average and that gave him several opportunities and avenues to seek assistance," Knopf said in her decision. "None of this seemed to help. As a result, it must be concluded that the employer has accommodated and tolerated (Soundy) to the point of undue hardship."
The grievance was dismissed.
Reference: GE Hitachi Nuclear Energy Canada and CAW Canada, Local 252. Paula Knopf — Sole Arbitrator. John Bruce for the Employer. Barry Lines for the Union. June 20, 2013. 9pp.
