Safeway should have tried progressive discipline: arbitrator
An Alberta grocery store worker committed serious misconduct with a pattern of taking too many breaks but firing him was too harsh, according to an arbitrator.
William Cooper, 59, was an employee at Canada Safeway starting in 1978 at a grocery store in Sherwood Park, Alta. Cooper was a lead hand and supervised three other employees on the night crew at the store. The night crew was responsible for stocking shelves, bringing out reserve product and straightening product on the shelves (called “facing” the store). As a lead hand, Cooper also had to conduct temperature checks, augment orders, and ensure the crew followed health and safety procedures.
Safeway had a policy on employee honesty and integrity that outlined the types of dishonesty that would result in termination of employment, including lying about hours worked. The company also had a policy requiring employees to record their hours worked. Violating the policy would make employees “subject to discipline including possible termination of employment.”
On Aug. 8, 2017, the store manager arrived in the morning and saw one of the night crew getting ready to leave. However, the store wasn’t faced or ready to open. The employee told him the crew had been busy that night and hadn’t had a chance to face the store.
The manager looked at video from surveillance cameras and calculated that Cooper took an extra 96 minutes of paid breaks than was allowed and the employee to whom he had spoken took an extra 109 minutes — employees were only entitled under the collective agreement to two 15-minute paid breaks and one 30-minute unpaid break.
Cooper acknowledged he was responsible for the time the night crew took for breaks. When asked about the breaks he took on Aug. 8, he said the janitors were working on the floors, so the crew got out of their way. He also said he had arrived at 9:15 p.m. but didn’t punch in until 10:30 p.m. The manager said working “off the clock” was prohibited by the collective agreement, to which Cooper responded that he was on modified duties — his ability to climb, lift, push, pull, and reach overhead was limited — and he wasn’t able to get all his work done. However, Safeway had hired an extra worker to help and the entire night crew didn’t have to get off the floor and go to the break room while the floor was waxed — the entire store wasn’t done all at once.
Afterwards, the manager suspended Cooper pending an investigation and viewed video footage from the previous week. He found that Cooper took extra breaks every night he worked, ranging from 28 minutes to 117 minutes longer than his break entitlement. The company completed the investigation and dismissed Cooper for violating the honesty and integrity policy and the recording time policy.
The union filed a grievance claiming the termination was unfair and unjust.
The arbitrator found the extra breaks Cooper took on paid time was contrary to the collective agreement and constituted serious misconduct.
“It is clear that taking excessive breaks and not doing productive work during work hours is viewed as a serious breach of the trust that is fundamental to the employment relationship,” said the arbitrator, noting that Cooper worked in a position of trust and leadership.
The arbitrator also found no evidence that Cooper’s modified duties required him to take extra breaks — only certain physical activities were limited for which Safeway hired another employee.
However, the arbitrator noted that Safeway resorted directly to dismissal. Though Cooper’s misconduct was serious, it didn’t reach a level that warranted skipping lesser discipline — particularly since Cooper had 38 years of service and had built up “a significant amount of ‘trust equity,’” said the arbitrator in ordering Safeway to reinstate Cooper with a 30-day suspension replacing his dismissal.
Reference: UFCW, Local 401 and Sobeys West (Cooper). Dev A. Chankasingh — arbitrator. Damon Bailey for employer. John Carpenter for employee. Sept. 26, 2019. 2019 CarswellAlta 2073