The grievor had significant discipline over attendance. However, it was mostly counselling and showed no progression in severity. The arbitrator found that the penalties could not have brought home to the grievor that his job was in jeopardy.
A worker for a telecommunications provider was fired for assorted attendance problems, including lateness, leaving early and repeated failures to adhere to his posted schedule.
R.A. was hired in 2005 to work part-time for a telecommunications provider. His first job was as a “client business analyst.” R.A. became full-time in 2006 and moved into the position of Personal Cellular Service Representative III — the position he held when he was fired on October 26, 2010.
The nature of R.A.’s disciplinary record was the central issue in his termination.
Nine times between January 2007 and March 2009, R.A. was counselled about being late and failing to keep to his posted schedule. There were six Meetings of Concern, two written warnings and one non-disciplinary meeting concerning his lateness.
In April 2009, R.A. took advantage of the company’s flexible work arrangements and became a home-based agent. R.A. interpreted his transition to home-based work to mean that the company had cleared his previous disciplinary record. However, that was not the case.
Five-day suspension
In any event, R.A.’s home-based work arrangement ended in May 2010 after he was issued a five-day suspension for violating a client’s confidentiality.
In the fall of 2010, R.A. became ill with a chronic and painful inflammatory skin condition. Though R.A. was receiving treatment, he was too embarrassed to tell his employer about his condition.
Beginning at the end of August 2010, R.A.’s attendance began to deteriorate.
Between Sept. 1 and Oct. 17, R.A. was late or absent 24 times.
R.A. was fired. The union grieved.
The employer argued that R.A.’s bout of absences between September and October constituted a culminating incident that warranted termination.
R.A.’s record showed that he had been counselled numerous times with respect to his reporting practices, schedule adherence and punctuality. In May 2010, he was suspended for five days. Then, over September and October 2010, R.A.’s attendance problems resurfaced. He violated company attendance reporting procedures 25 times over that period. The employer argued that the termination was warranted.
The union agreed that discipline was appropriate but argued that termination was not warranted in the circumstances. The doctrine of a culminating incident did not apply in this case, the union said, because there had been no application of corrective, progressive or escalating discipline.
The employer had improperly relied upon the Meetings of Concern to justify R.A.’s termination. Those meetings were non-disciplinary in nature and, therefore, the union was unable to grieve them.
R.A. had been lulled into a false sense of security because he faced no disciplinary sanctions for his attendance lapses between 2007 and 2009, the union said. R.A.’s misperceptions about his employer’s take on his absences over that period were exacerbated by his belief that his record had necessarily been cleared in order for him to be permitted to work from home.
The union acknowledged the five-day suspension but pointed out that the nature of the offence was entirely different.
Counselled to death
The union said that the aim of progressive and corrective discipline was to ensure that an employee was aware that his or her job was in jeopardy. That didn’t happen here, the union said. R.A. was given a series of non-disciplinary letters concerning his attendance and then he was fired.
R.A. was ordered reinstated.
The Arbitrator agreed that R.A. had been “counselled to death.”
“The problem with this pattern of seemingly never-ending counselling, is that it is highly likely that [R.A.] never realized that the employer viewed his failure to adhere to the proper reporting procedures as serious. So serious in fact that he was discharged for it. He never realized that his job was actually in jeopardy from failing to follow scheduling procedures, as he had been led to believe that the penalty for failing to follow scheduling procedures was at most a written warning.”
The employer’s reliance on R.A.’s fall attendance lapses as a culminating incident could not succeed, the Arbitrator said.
“For something to be considered a culminating incident, it must be culminating in the sense that it [is] the final discipline in a series of discipline. But in this case there is no real history of discipline, as all there is on this issue is two stale-dated written warnings. There is no history of progressive discipline being issued to the grievor for his failure to adhere to scheduling procedures. We have successive incidents of misconduct by [R.A.] but virtually no discipline what so ever for it. Therefore, the violations of the scheduling rules by the grievor in September and October, 2010, cannot be relied upon as a culminating incident given the lack of progressive discipline.”
