No tolerance could leave zero room to rule in employer’s favour
Lou Daniel had worked at Stelco Steel for 27 years with three very minor blemishes on his disciplinary record when he was dismissed for cheating on the steel mill’s attendance record-keeping system.
A periodic review by the payroll department of employees’ attendance reports showed Daniel had failed on many occasions to properly account for his time. He arrived late and left early without using his time card or notifying his supervisor. During a period of 206 days worked, there were 99 irregularities in Daniel’s attendance records. Where the other employees averaged only one “did not ring in” per year, he had racked up 30 during the 11 months of the audit of his records.
Daniel’s foreman had counselled him about his attendance obligations and knew he had a child whose disability required much care. As a result, the company had allowed him to vary his start time to enable him to look after his disabled son.
Stelco used an honour system for employees to record arrival and departure times. When employees seemed to be increasingly irresponsible in signing in and out, the company issued warnings against defrauding the company of time.
Eventually, Stelco introduced a policy of zero tolerance of time theft. If employees cheated on time worked, they would face discharge.
Things came to a head for Daniel during the second of two disciplinary meetings. He initially denied he was ever more than 15 minutes late for work, but that assertion was proven wrong by attendance records. He later admitted he had been late for work on several occasions and had indeed failed to notify the company properly. The company terminated his employment not only because of his record, but also because he was less than forthcoming when asked about it. As far as management was concerned, the bond of trust between it and Daniel was broken.
The union launched a grievance arguing Daniel’s length of service, generally good disciplinary record and compelling personal circumstances called for discipline less draconian than what amounted to “workplace capital punishment.”
The arbitrator noted “the knowing misrepresentation of time worked is tantamount to theft” and that dismissal is the usual consequence. However, he added that each case had to be judged on its merits and further, that this was not a situation in which an employee had manipulated payroll records for his own enrichment. The situation was more complex and centred on Daniel’s unfortunate family situation.
Daniel’s 11-year-old son had Down syndrome along with a history of asthma and other breathing difficulties, which required Daniel and his wife to be particularly vigilant, especially overnight. The boy had also been recently diagnosed with diabetes. Compounding the family’s stress was that Mrs. Daniel’s job required her to go to work at 3:00 a.m. The arbitrator observed a “direct connection between the grievor’s time-keeping difficulties and the stress of his family situation.” His record worsened when the health of his son deteriorated and improved when the boy’s condition was somewhat better. The arbitrator observed Daniel had attempted — in vain — to keep two balls in the air at once: one as a good employee, and the other as a dutiful parent.
The arbitrator did not excuse Daniel’s deception around his timekeeping. However, he found that the dishonesty was “not the result of a sinister mind,” but “as the doubtful rationalization of a person who saw himself serving his employer well by getting his job done and balancing that requirement with the extraordinary burdens of his child and family obligations.” There was a very strong mitigating circumstance: the grievor’s record of 27 years of good service to the company.
Further, the arbitrator criticized the zero tolerance policy. He said an employee couldn’t be blamed for being less than candid when he knew that telling the truth would result in his immediate discharge and economic hardship to himself and his family. He noted if a company “abandons its own discretion and makes discharge the sole automatic penalty regardless of the circumstances,” very few employees will do the honourable thing and own up to misbehaviour. In fact, a zero tolerance policy can act as a disincentive to telling the truth.
He observed progressive discipline could have been an alternative — with a substantial suspension being preferable to termination. He ruled a zero tolerance policy “cannot be elevated to a unilateral amendment of the just cause provisions of the collective agreement.” An arbitration board still had the opportunity to weigh just cause for a dismissal against any mitigating factors in a particular case.
The arbitrator overruled the zero tolerance policy and ordered Daniel be reinstated because of his length of service, but only on the condition that if in any six-month period in the ensuing two years, he reported more than two “did not ring ins” or two “did not ring outs,” he would face discharge.
Dismissal of an employee who has run so seriously afoul of workplace rules that re-establishing trust seems impossible may be more easily accomplished by relying on progressive discipline and not on a zero tolerance policy.
In a similar situation, an arbitrator considered the termination of a hospital operating room booking clerk, caught cheating on her overtime claims and general timekeeping. She had not expressed remorse for her actions and appeared not to understand that making false claims was unacceptable.
She had worked in one capacity or another at William Osler Health Centre in Toronto since 1977 and previously had only one minor blemish on her record. In poor health herself, she was also the parent of a child with health problems. However, at arbitration there was no suggestion by either management or the union that a cause-effect relationship existed between her false reports and her child’s poor health.
The hospital where she worked, unlike the steelworks, had not been “diligent in checking overtime claims.” Nor had it enforced its policy of requiring employees to obtain approval before working overtime, leaving early or arriving late. However, that had changed with the arrival of a new patient care manager who investigated the large overtime bank the employee had accumulated — 98 hours compared with no hours banked by anyone else in the department. During two disciplinary meetings, the employer warned the clerk to change her behaviour.
Finally, she was let go as a result of what the employer called a “pattern of premeditated conduct,” along with no admission of misconduct — a particularly damning omission since there was no zero tolerance policy which, as the arbitrator in the other situation concluded, might lead an employee to lie. According to the employer, she also failed to give a credible explanation for her claims and had been told of the rules around overtime at the two disciplinary meetings.
The union countered by saying there were no grounds for her discharge as the evidence was not necessarily accurate. It asked, “if the grievor was trying to defraud the hospital, why would she do it so openly and why would the hospital take so long to notice?”
Noting this was not a situation where there were just one or two isolated claims, the arbitrator observed that not only was the grievor unrepentant, she even went so far as to contradict the union witness. The arbitrator found her evidence was not credible in view of other evidence offered. Although she was a single parent with a teenage son, and both had health problems, her lack of credibility prevented the arbitrator from moderating the hospital’s decision to terminate her employment. The grievance over her termination was dismissed.
For more information: Stelco Steel, Hilton Works and the United Steelworkers of America, Ontario Labour Code Arbitration, Michel Picher — Sole Arbitrator, Oct. 10, 2002. William Osler Health Centre and the Service Employees International Union, Ontario Labour Code Arbitration, Gail Brent — Sole Arbitrator, Nov. 22, 2002.
Lorna Harris is the assistant editor of CHRR’s companion publication CLV Reports, a newsletter that reports on collective bargaining and other issues in labour relations and human resources. She can be reached at (416) 298-5141, ext. 2617 or [email protected].
A periodic review by the payroll department of employees’ attendance reports showed Daniel had failed on many occasions to properly account for his time. He arrived late and left early without using his time card or notifying his supervisor. During a period of 206 days worked, there were 99 irregularities in Daniel’s attendance records. Where the other employees averaged only one “did not ring in” per year, he had racked up 30 during the 11 months of the audit of his records.
Daniel’s foreman had counselled him about his attendance obligations and knew he had a child whose disability required much care. As a result, the company had allowed him to vary his start time to enable him to look after his disabled son.
Stelco used an honour system for employees to record arrival and departure times. When employees seemed to be increasingly irresponsible in signing in and out, the company issued warnings against defrauding the company of time.
Eventually, Stelco introduced a policy of zero tolerance of time theft. If employees cheated on time worked, they would face discharge.
Things came to a head for Daniel during the second of two disciplinary meetings. He initially denied he was ever more than 15 minutes late for work, but that assertion was proven wrong by attendance records. He later admitted he had been late for work on several occasions and had indeed failed to notify the company properly. The company terminated his employment not only because of his record, but also because he was less than forthcoming when asked about it. As far as management was concerned, the bond of trust between it and Daniel was broken.
The union launched a grievance arguing Daniel’s length of service, generally good disciplinary record and compelling personal circumstances called for discipline less draconian than what amounted to “workplace capital punishment.”
The arbitrator noted “the knowing misrepresentation of time worked is tantamount to theft” and that dismissal is the usual consequence. However, he added that each case had to be judged on its merits and further, that this was not a situation in which an employee had manipulated payroll records for his own enrichment. The situation was more complex and centred on Daniel’s unfortunate family situation.
Daniel’s 11-year-old son had Down syndrome along with a history of asthma and other breathing difficulties, which required Daniel and his wife to be particularly vigilant, especially overnight. The boy had also been recently diagnosed with diabetes. Compounding the family’s stress was that Mrs. Daniel’s job required her to go to work at 3:00 a.m. The arbitrator observed a “direct connection between the grievor’s time-keeping difficulties and the stress of his family situation.” His record worsened when the health of his son deteriorated and improved when the boy’s condition was somewhat better. The arbitrator observed Daniel had attempted — in vain — to keep two balls in the air at once: one as a good employee, and the other as a dutiful parent.
The arbitrator did not excuse Daniel’s deception around his timekeeping. However, he found that the dishonesty was “not the result of a sinister mind,” but “as the doubtful rationalization of a person who saw himself serving his employer well by getting his job done and balancing that requirement with the extraordinary burdens of his child and family obligations.” There was a very strong mitigating circumstance: the grievor’s record of 27 years of good service to the company.
Further, the arbitrator criticized the zero tolerance policy. He said an employee couldn’t be blamed for being less than candid when he knew that telling the truth would result in his immediate discharge and economic hardship to himself and his family. He noted if a company “abandons its own discretion and makes discharge the sole automatic penalty regardless of the circumstances,” very few employees will do the honourable thing and own up to misbehaviour. In fact, a zero tolerance policy can act as a disincentive to telling the truth.
He observed progressive discipline could have been an alternative — with a substantial suspension being preferable to termination. He ruled a zero tolerance policy “cannot be elevated to a unilateral amendment of the just cause provisions of the collective agreement.” An arbitration board still had the opportunity to weigh just cause for a dismissal against any mitigating factors in a particular case.
The arbitrator overruled the zero tolerance policy and ordered Daniel be reinstated because of his length of service, but only on the condition that if in any six-month period in the ensuing two years, he reported more than two “did not ring ins” or two “did not ring outs,” he would face discharge.
Dismissal of an employee who has run so seriously afoul of workplace rules that re-establishing trust seems impossible may be more easily accomplished by relying on progressive discipline and not on a zero tolerance policy.
In a similar situation, an arbitrator considered the termination of a hospital operating room booking clerk, caught cheating on her overtime claims and general timekeeping. She had not expressed remorse for her actions and appeared not to understand that making false claims was unacceptable.
She had worked in one capacity or another at William Osler Health Centre in Toronto since 1977 and previously had only one minor blemish on her record. In poor health herself, she was also the parent of a child with health problems. However, at arbitration there was no suggestion by either management or the union that a cause-effect relationship existed between her false reports and her child’s poor health.
The hospital where she worked, unlike the steelworks, had not been “diligent in checking overtime claims.” Nor had it enforced its policy of requiring employees to obtain approval before working overtime, leaving early or arriving late. However, that had changed with the arrival of a new patient care manager who investigated the large overtime bank the employee had accumulated — 98 hours compared with no hours banked by anyone else in the department. During two disciplinary meetings, the employer warned the clerk to change her behaviour.
Finally, she was let go as a result of what the employer called a “pattern of premeditated conduct,” along with no admission of misconduct — a particularly damning omission since there was no zero tolerance policy which, as the arbitrator in the other situation concluded, might lead an employee to lie. According to the employer, she also failed to give a credible explanation for her claims and had been told of the rules around overtime at the two disciplinary meetings.
The union countered by saying there were no grounds for her discharge as the evidence was not necessarily accurate. It asked, “if the grievor was trying to defraud the hospital, why would she do it so openly and why would the hospital take so long to notice?”
Noting this was not a situation where there were just one or two isolated claims, the arbitrator observed that not only was the grievor unrepentant, she even went so far as to contradict the union witness. The arbitrator found her evidence was not credible in view of other evidence offered. Although she was a single parent with a teenage son, and both had health problems, her lack of credibility prevented the arbitrator from moderating the hospital’s decision to terminate her employment. The grievance over her termination was dismissed.
For more information: Stelco Steel, Hilton Works and the United Steelworkers of America, Ontario Labour Code Arbitration, Michel Picher — Sole Arbitrator, Oct. 10, 2002. William Osler Health Centre and the Service Employees International Union, Ontario Labour Code Arbitration, Gail Brent — Sole Arbitrator, Nov. 22, 2002.
Lorna Harris is the assistant editor of CHRR’s companion publication CLV Reports, a newsletter that reports on collective bargaining and other issues in labour relations and human resources. She can be reached at (416) 298-5141, ext. 2617 or [email protected].
