The grievor was caught trying to smuggle product out of the plant. She was suspended over the phone and later fired. At no time did she have union representation. The termination was overturned, but the arbitrator decided not to require the company to return her to the workplace.
Fired after she was caught attempting to smuggle product from the chocolate factory where she worked, the grievor’s termination was voided when the Arbitrator ruled that the company imposed discipline on her in the absence of union representation.
This violation of a substantive contract right meant the discipline could not stand. Reinstatement, however, was not appropriate.
B.L. was 67 years old and had 34 years service at the chocolate factory where she worked when she was fired on Nov. 3, 2010.
Theft was a concern at the plant, which produced small, edible confectioneries. Employees were required to endorse company policies, including a policy prohibiting theft. B.L. had signed such a document in 1995.
Security procedures at the plant required everyone to pass through a visual security check on leaving the plant.
Employees could purchase product at a discount. They could also take scrap chocolate free of charge if they received authorization from a supervisor in the form of a “Product/Property Pass.”
Two boxes of chocolate bars
Exiting through security on Oct. 29, 2010, B.L. was found to have two boxes of chocolate bars in her bag. She had no pass.
Security alerted the assistant manager of human resources who was told that there had been an “incident” at security and that an employee was found in possession of “unauthorized product.”
Once on the scene, the assistant manager took B.L. aside and asked her two questions. B.L. was allowed to leave.
The assistant manager later phoned B.L. at home and informed her that she was suspended pending a further inquiry.
B.L. was later fired.
The union argued that the discipline was void ab initio. When she approached B.L. at security, the assistant manager had already been alerted that there had been an incident and that someone had been caught with “unauthorized product.” Clearly any subsequent meeting between B.L. and the assistant manager contained disciplinary action as a likely consequence. The employer violated the collective agreement when it failed to alert B.L. of her right to have a union steward present at that meeting. That failure was compounded, the union said, when the assistant manager later called B.L. and issued discipline in the form of a suspension.
The Arbitrator agreed.
An employee’s contract rights to union representation come into play once there is an alleged transgression, the Arbitrator said.
Subsequent inquiries
A routine spot check does not necessarily carry the burden of particular suspicion or allegations and does not therefore engage the right to union representation. However, that changes when suspicions are aroused.
The Arbitrator cited Loblaws Supermarket (Gamache): “When the result of a random check indicates an employee does not have a receipt for merchandise, the employer then has reason to suspect wrongdoing and the right to union representation applies to any subsequent inquiries.”
In this case, the assistant manager’s conversation with B.L. at security constituted “subsequent inquiries,” the Arbitrator said More than that, the suspension issued by the assistant manager over the telephone amounted to discipline that was imposed without union representation.
“I have found the Company breached [the collective agreement] when, in the absence of Union representation, [the assistant manager] initially discussed the grievor’s misconduct with her on Oct. 29, 2010 and, also, breached [the collective agreement] when, in the absence of Union representation, [the assistant manager] suspended the grievor in a telephone conversation later that day.”
The union did not allege that the discipline was without just cause.
The Arbitrator accepted that evidence of the employer’s policies and practices showed that termination was not automatic for theft.
However, the Arbitrator also noted the vulnerability of the employer to theft and the essential element of trust in the employment relationship. The onus was on the union in this case to show that there were sufficient mitigating factors to balance against the company’s interest in protecting its business, the Arbitrator said.
In weighing the factors as set out in Re Canadian Broadcasting Corp, the Arbitrator found that B.L. was not a good candidate for reinstatement. The parties were ordered to reach agreement on an appropriate amount of damages payable to B.L.
Reference: Cadbury Adams Canada, Inc. and United Food and Commercial Workers Union, Local 175. William A. Marcotte — Sole Arbitrator. D. Donald for the Employer. N.L. Wiley for the Union. August 9, 2011. 27 pp.
