No union representation makes worker’s dismissal null and void: Arbitrator

Employer didn't follow collective agreement rules before dismissing employee

An arbitrator has reinstated a unionized Ontario worker who was fired for sleeping on the job but wasn’t allowed union representation before he was dismissed.

The worker was employed with Crosby Canada, a manufacturer of forged and assembled steel products such as hooks, shackles, clamps and other items used in the construction, mining, and oil and gas industries. He was part of a crew that operated large pieces of equipment used in the manufacturing process. The crewmembers rotated through the machines every 15 minutes so they each used all of the machines.

Crosby employees were allowed to trade shifts, and the worker traded his shifts so he could work almost exclusively on the midnight shift. He had one incident of discipline for sleeping at work on his record.

On July 18, 2014, the worker was stationed at a machine called a heater, which heated steel billets from a hopper and a chute. The person manning the heater had to monitor billets as they were fed into the chute to ensure there wasn’t a jam, which could cause the heater to explode.

The supervisor came by on his regular rounds and, as he walked towards the heater, he saw one of the other crewmembers waving his arms in the direction of the heater. He saw another employee smiling while looking at the worker and, when the supervisor approached the heater he saw the worker sitting in the heater chair — which was facing him — with his head bent down and eyes closed. The supervisor reached up and touched the worker, who woke up startled.

The supervisor asked the worker to come to the office. When they reached the outside of the office, they had a discussion about the situation. The worker denied sleeping and said he had just “closed his eyes for a bit.” The supervisor told the worker to go home and the worker continued to deny he had been sleeping, saying it was “bulls---,” though the supervisor said he was polite throughout the conversation.

The other crewmembers were interviewed and two of them said the worker had slept on the job before, though neither had seen him sleeping on that shift specifically. A third crewmember said he didn’t see anything.

Crosby determined the worker was sleeping on the job and dismissed him for cause. The union challenged the termination, saying he had not been provided with union representation for either his discussion with the supervisor or the decision to terminate under the collective agreement, which stated: “When the company meets with an employee to obtain information that may lead to such employee’s reprimand, suspension or discharge, a committeeperson shall be present. An employee shall only be disciplined, suspended or discharged in the presence of his/her committeeperson.”

Crosby argued there was no prejudice to the worker as it conducted a fair and complete investigation and the worker didn’t lose any pay during the investigation.

The arbitrator found there was no doubt the worker was caught sleeping at work and when he was sent home on July 18, it constituted a suspension — though paid — while the company investigated. And the suspension happened without giving the worker union representation, said the arbitrator.

The arbitrator also found there was no reason why the supervisor could not have contacted a union representative before continuing the discussion with the worker and sending him home. Though there was no union representative working on the night shift, it would have been reasonable to wait a few hours before making the decision, said the arbitrator.

“Mere inconvenience does not justify the denial of providing the union representation that is required by the collective agreement,” said the arbitrator.

The arbitrator found the worker was denied his contractual right to union representation before being suspended and dismissed, which rendered the dismissal null and void. Crosby was ordered to reinstate the worker. See Crosby Canada Inc. and Unifor, Local 1285 (Pegoretti), Re, 2015 CarswellOnt 3283 (Ont. Arb.).

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