The grievor was given a suspension, but it was to be served at a later time. The union grieved, arguing that the discipline had to be imposed within three days. The arbitrator found that the imposition of the penalty was not the same thing as the serving of the suspension.
Notified that he had been assessed a two-day suspension, a worker grieved when he was informed that he would have to serve the suspension two weeks later.
B.W. was employed at a plant that produced corrugated cardboard boxes. On Wednesday, Aug. 17, 2011 he received a letter informing him that he was being suspended for two days “at the discretion of the company.”
B.W. worked the next two days and then began a one-week vacation. Upon his return, B.W. worked on Monday, Aug. 29. He was told then that he was to serve his suspension over the next two days.
The union grieved. The union did not take issue either with the suspension or the timing of the letter issued to B.W.
However, the union did argue that the ‘imposition” of the discipline — almost two weeks after the notification letter — violated the terms of the collective agreement.
In section 23-01 of the collective agreement, which dealt with employees’ conduct records, item (d) specified that “should any discipline be imposed, it shall be imposed immediately following occurrence, but in no case more than three (3) working days after occurrence.”
The union interpreted the collective agreement to mean that suspensions must begin no later than three days after the occurrence. It was significant, the union said, that the agreement specified that the “discipline” — as opposed to the notice of suspension — must be imposed immediately following the occurrence.
Sunset on discipline
The union noted that the sunset clause on discipline came into play sooner in their particular collective agreement than was usual and suggested that the effect of delaying the imposition of discipline amounted to a method of pushing back the sunset window in a way that had not been bargained.
The employer argued that discipline was “imposed” when it was communicated to the employee. In this case, the employer said, as long as a worker was notified about the suspension within three days of the occurrence, there was no breach of the agreement.
Management was within its rights to determine when a worker should serve his or her suspension, the employer said. This did indeed allow the employer to exercise some discretionary power, however, the employer was prevented from exercising this discretion arbitrarily or in bad faith.
The Arbitrator agreed.
“In my view, the plain meaning of the word ‘impose’ as used here is that the disciplinary action is communicated to the employee… The word is used in the same sense as one might say that a court had ‘imposed’ a sentence or a fine, but not made it effective until some time later, or a government might ‘impose’ a tax, effective later. Had the parties intended the three-day time frame to apply to when the suspension is actually served, I would have expected them to instead have used a phrase indicating that the discipline ‘shall be implemented,’ ‘be served,’ or ‘be given effect’ within the three-day period.”
No incentive to delay discipline
The Arbitrator acknowledged the union’s concern that the employer was in a position to push back the sunset clause by delaying when workers served their suspensions.
However, the Arbitrator said there was no history to suggest that the employer had engaged in such practices and little in the way of incentives to proceed in such a manner.
“[A]s the company acknowledged, its discretion in setting the dates on which suspensions are to be served must be exercised free of any arbitrariness or bad faith. Given that the purpose of a suspension is to correct improper behaviour, no legitimate purpose is served by delaying the implementation unduly. The evidence suggested that the company does not normally delay the dates on which suspensions are served except for what it regards as legitimate business reasons.”
The grievance was dismissed.
