Moose Jaw, Sask., hotel cleaner fired after she didn’t remove pigeon’s nest

Coaching suitable response to attendant’s failure: Arbitrator

A hotel in Moose Jaw, Sask., terminated one of its cleaners after another cleaner found a pigeon nest with eggs and hatchlings on one of its balconies.
The Temple Gardens Hotel and Spa had experienced an ongoing problem with pigeons nesting in its balconies and had spent much money and effort on keeping them away, often to no avail.
Staff were told to ensure that all pigeon-related messes were to be immediately cleaned and a re-training effort was given to employees in April 2018.
Welley Lamadine had worked for the employer since 2007 and was working as a room attendant. On May 20, 2018, she cleaned a room and circled it as done on the checklist. However, on June 2, another attendant noticed a nest with two recently hatched pigeons and two eggs.
The incident was reported to Melanie Taylor, executive housekeeper, who researched via the internet the incubation period for pigeons. She found out that it was 17 to 19 days.
Two other attendants were given discipline for not checking the balcony, as was Lamadine on June 7. Lamadine was terminated as it was her seventh violation under the newly implemented letter of understanding (LOU) 8, entitled “Discipline without punishment,” which was a part of the collective agreement.
It outlined four steps for discipline, with the final step resulting in automatic termination.
Lamadine’s previous violations were for being late, poor performance, and not showing up for a shift and not advising anyone. 
On April 6, 2018, Lamadine had a meeting with management to discuss recent complaints by coworkers about her negative interactions. As it was her sixth disciplinary notice, Lamadine was given a paid decision-making leave on April 17 and told the next one could lead to termination.
The Saskatchewan Joint Board, Retail, Wholesale and Department Store Union (RWDSU) grieved on June 18 and argued the punishment was too strong despite the LOU which strictly set out what happened.
Arbitrator Catherine Zuck agreed and took umbrage with Temple Gardens’ interpretation of LOU 8. 
“It is the board’s opinion that the words ‘for an infraction’ mean that the exact act must be specified in the agreement between the parties in order to be binding on this board. It cannot be as general as ‘something the employer regards as disciplinable,’ which is the interpretation urged by the employer. Before both parties can freely agree to a specific punishment, they must know what specific act will trigger that punishment. Thus, in this case, for the board to be bound, the parties must have agreed that something like ‘the failure to clean pigeon nests off a balcony’ will result in termination, which they did not. This is especially so when there is evidence, as there is here, that not every employee who fails to clean pigeon nests off the balcony is terminated.”
Instead of termination, Zuck determined “the appropriate action for the grievor’s failure to clean the pigeon nest off the balcony to be the informal discussion action of coaching. There is no evidence that simply reminding (Lamadine) to check and clean the balconies would not be sufficient to correct her mistake and prevent a reoccurrence.”
And the employer’s past practice in one case indicated that it didn’t always resort to termination for the seventh infraction, she said. 
“It is always open to the employer, when faced with a particular formal discussion action because of the number of previous number and type of formal discussion actions, to avoid an unjust and unreasonable result in light of the circumstances by declining to treat the incident under the formal discussion actions. It could take an informal discussion action. The employer already did this once when faced with a situation where the front desk employee had six formal discussion actions and the only remaining formal discussion action available was termination.”
Reference: Temple Gardens Hotel and Spa and the Saskatchewan Joint Board, Retail, Wholesale and Department Store Union. Catherine Zuck — arbitrator. Edward Snetsinger for the employer. Ronni Nordal for the employee. Dec. 10, 2018. 2018 CarswellSask 638

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