Worker terminated for sleeping on the job

A worker was fired after he was disciplined for being caught sleeping on the job. The employer said the discipline violated the worker’s Last Chance Agreement (LCA).

The union grieved.

Z.B. was employed as a warehouse worker at the Coca-Cola Bottling Company. He was on modified duties when he was fired on Aug. 13, 2010. Z.B.’s light duty assignments consisted of patrolling the warehouse and order-pick areas to pick up and remove any damaged boxes or product and to generally sweep and keep the warehouse clean.

Shortly after 7:00 a.m. on Aug. 4, 2010, a supervisor and a warehouse worker observed that while they had seen evidence that Z.B. was in the area, they had not seen Z.B. The supervisor began to look for Z.B. The worker did not find Z.B. near the garbage compactor or in the other areas where he would normally have been.

The supervisor then checked the small, pre-fab shack (the “fish hut”) in the warehouse that had been used as a temporary office. The fish hut had been decommissioned and it was locked.

“Stretching exercises”

The supervisor unlocked and then opened the door. He found Z.B. facing the wall in a fetal position laying on a piece of cardboard. Z.B.’s head was resting on some shrink-wrap.

The supervisor called Z.B.’s name. Z.B. awoke and then reached to grab his legs, which he then brought up to his chest. Z.B. told the supervisor that he was in the fish hut performing stretching exercises.

Z.B. was fired.

Z.B. had earlier been reinstated under the terms of a LCA in 2007. Under the terms of the agreement, Z.B. could be fired for any “Disciplinable Conduct.”

The employer said that Z.B. had been caught sleeping while on company paid time during his scheduled shift on Aug. 4, 2010. This constituted disciplinable conduct, the employer said. Z.B. had violated the terms of the LCA and termination was warranted.

The union said there was no evidence that Z.B. was sleeping because he was not observed to be snoring when he was discovered nor was he seen to rub his eyes in order to regain consciousness.

Shrink-wrap pillow

The grievance was dismissed and the termination was upheld.

“I am left to determine the credibility as between the evidence of [the supervisor who discovered Z.B.] that the grievor was sleeping, and the evidence of the grievor that he was not, but rather that he was stretching. I prefer the evidence of [the supervisor]. Leaving aside the obvious self-interest that the grievor has in saying that he was not sleeping, the objective evidence supports a finding that the grievor was sleeping. He was lying down in the fetal position. He was close to and facing a wall. He had made a bed out of cardboard and a pillow out of shrink wrap. The fish hut had no lights on. The door was locked. When the door opened, he did not stir. He did not wake up until his name was called out… He did not quarrel when the supervisor asserted that he was not stretching but sleeping. Had the grievor only been stretching, he would not have had to go into a locked decommissioned dark structure. He could have stretched in other parts of the workplace.”

The Arbitrator found that on the balance of probabilities, Z.B. was sleeping.

However, even if Z.B. was not sleeping, he was nevertheless guilty of disciplinable conduct.

Z.B. had no authorization to leave his work area. Nor was he authorized to enter a decommissioned work area to do stretching exercises.

The Arbitrator said that when Z.B. absented himself without permission to an area where no one would know where he was, Z.B. was risking his own safety and the safety of his co-workers.

“If the grievor needed to take time off work to stretch, it would have been granted. In fact, he could have just stopped work and stretched in a safe authorized area. He did not do so. He absented himself without authorization and went into an internal building that is no longer in use where he could not be seen by others. This action by itself was, in my view, Disciplinable Conduct.”