Termination Excessive for 23-Year Employee

Fired for leaving work without proper authorization, a train conductor with 23 years’ experience was reinstated when the Arbitrator ruled that mitigating factors and a “culture of laxity” for brief absences from the workplace rendered the penalty of summary termination excessive.

With a verbal okay from the yard foreman, C.O. left the railyard at 9:00 am to assist his father with a car repair. He returned 35 minutes later. C.O. had made an informal arrangement with the yard foreman that he would make up for the time spent on the errand by working through his breaks. However, C.O.’s absence from the rail yard was discovered by the trainmaster who was seeking confirmation for an updated switching list. Unable to raise C.O. on the radio, the trainmaster investigated at the rail yard and was present when C.O. returned from his errand.

Unauthorized absence

Citing a violation of the company’s attendance management program, C.O. was fired for leaving company property without proper permission.

The union grieved, arguing that the penalty of termination was excessive. The Arbitrator agreed.

Adopted first at the beginning of 2007, the company’s general notice on attendance management was re-issued in November of that year and again in January 2009. By issuing such a policy, the company may have intended to indicate it had a problem with workplace absences, but the way the policy was promulgated was insufficient to make employees aware of the policy, the Arbitrator said.

Indeed, C.O. testified that he had no knowledge of the policy. There was no requirement that employees sign off on the policy nor was it likely that they would come across it, as the policy was not posted on any bulletin boards but rather filed in a rolodex binder along with general information.

By contrast, the Arbitrator accepted the union’s assertion that there was a general understanding at the workplace that such brief absences could be secured with the permission of the foreman who — it was understood — would clear the absence with higher management. That was what happened in this case, the Arbitrator said. C.O. had asked for permission from the yard foreman, and he had received it.

By failing to secure permission to leave the workplace from the proper level of management, C.O. did commit a “serious error” of judgment warranting discipline, the Arbitrator said, but he did not intend to engage in a theft of time as management charged.

“I am satisfied that he knew, or reasonably should have known, that the better course would have been to verify with higher management, either himself or through [the yard foreman], that he could leave the premises as he did. However, in my view there are extensive mitigating factors which must be taken into account in the case at hand.”

“Culture of laxity”

There was at the workplace a “culture of laxity with respect to employees absenting themselves briefly without proper authority,” the Arbitrator said.

The attendance management policy was not promulgated in such a way that employees would necessarily see it, and it was clear that C.O. intended to make up for the time spent on the errand with his breaks.

“Finally, there appears to be no dispute that his absence from the workplace would not, in the end, have caused any loss of production. It appears unchallenged that the work which remained for [C.O] and his father to perform would have been accomplished during the balance of their tour of duty, without great difficulty. I am not satisfied that the facts disclosed justify the summary termination of an employee [with 23 years of service].”

The grievance was allowed, in part. An effective suspension of nine days without pay was substituted for the termination.

Reference: Canadian National Railway Co. and Teamsters Canada Rail Conference. Michel G. Picher — Sole Arbitrator. J. Holliday for the Union and D. Crossan for the Employer. June 18, 2010. 5 pp.

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