Caught Nesting, Worker Saved by Mitigating Factors

Caught during working hours in a locked, darkened office — reclined, feet up and his head resting on a roll of paper towel — a worker was fired for “nesting.”

Working on the janitorial crew to comply with medical restrictions that came about after a workplace injury, P.J. was a 13-year employee who had enjoyed some success with his employer, an industrial yarn manufacturer.

Beginning as an operator, P.J. progressed through the various stations in the mill, finally becoming a Shift Tech Resource (STR) and then summertime relief foreman. He was promoted to full-time foreman for about three years but then was sent back to the floor to work as an STR following a restructuring.

Until 2006, P.J.’s relationship with the employer was positive. He had been promoted and was in receipt of a number of positive evaluations, commendations and letters for outstanding performance and leadership.

Domestic troubles

Circumstances changed in 2006 when P.J. was assigned to a specialty function that he did not perform well. He was given a negative evaluation and sent back to the floor. P.J. ascribed his performance deficiencies to domestic troubles.

P.J. bounced back initially, receiving positive feedback early in 2007 but again he ran into difficulties by the end of the year and into 2008. Over that period he was given another negative evaluation, he had been placed in the company’s attendance management program and he had received a suspension for hawking bootleg dvds in the workplace. In addition, P.J. suffered a workplace injury in 2008 and was reassigned to the janitorial crew in order to comply with his medical restrictions.

Two days before Christmas 2008, P.J. approached his supervisor early in the shift and, citing a very bad night arguing with his wife, asked for the next two days off. The supervisor granted him the next day off but told P.J. that they needed him to stay that day as they were short-handed. P.J. agreed.

Alerted later in the day that washrooms that P.J. should have attended to were in bad shape, the supervisor went looking for him. P.J. was apologetic and offered a number of excuses when the supervisor discovered him asleep in an office. He was sent home pending an investigation and later fired. The union grieved.

Time theft

The employer argued that P.J. was guilty of serious misconduct equivalent to time theft. He was found in an office that he was not required to clean, in an area he was not supposed to be in with the lights off and the door locked. His feet were up and his head was resting on a roll of paper towels. Clearly, the employer said, P.J. had deliberately found himself a quiet place to sleep and therefore termination was warranted.

P.J. denied that he was “nesting.” He testified that he needed some quiet time over lunch to process the argument that he had had with his wife. He may have turned off the lights but the door locked automatically. And, in any case, if he was trying to hide, he would not have left his cleaning cart outside the door, he said. He may have fallen asleep but that was not his intention when he went in, he contended.

Sleeping on the job is serious misconduct, the Arbitrator said, and particularly where an employee has deliberately isolated him or herself and made a “nest” away from their normal workstation. In these cases, arbitrators generally uphold the case for termination.

“Close case”

This was a “close case” the Arbitrator said, casting doubt on P.J.’s candour and ruling that the evidence did indeed support the conclusion that P.J. had sought out a quiet place to sleep. “[H]e may not have intended to sleep for an extended period of time. Still, the evidence reflects an intention on the part of the grievor … to fall asleep for some period of time. At minimum, the grievor must have been aware that he was likely to fall asleep for some period of time after having closed the lights and put his feet up and his head on a roll of paper towels. The grievor’s conduct was therefore quite serious indeed.”

However, significant mitigating factors came into play, the Arbitrator found. P.J. apologized immediately. But more important was his record. P.J. had been promoted and commended for his performance throughout most of his tenure. While a lengthy suspension was warranted, the Arbitrator said that P.J. should be given one last chance to rehabilitate his employment relationship.

Reference: Kingston Independent Nylon Workers’ and Invista Canada. Norm Jesin — Sole Arbitrator. Ernest Schirru for the Union and Robert Little for the Employer. October 23, 2009. 12 pp.

Latest stories