Two employees caught smoking marijuana were reinstated under Last Chance agreements. They had clean records and, the arbitrator felt, good chances for rehabilitation.
Three workers at an auto parts manufacturer were observed and photographed doing marijuana “bottle tokes” in a parked car in the company parking lot. The workers were terminated. The union grieved.
In December 2010, a worker at an auto parts manufacturer expressed concerns to management about drug use on company property. Three workers were named. The company hired a private investigator to conduct surveillance.
Plant rules in effect provided that workers “may” be subject to termination for illegal possession or consumption of an intoxicant on Company property.
On Feb. 22 and 23, 2011, the company’s investigator observed and photographed the three named workers smoking marijuana in a car in the company parking lot.
P.E. was one of the workers observed. He was hired in April 2006. He was a Material Handler and a Forklift Operator. There was no discipline on his record.
D.J. was a Responder at the plant. His record was also discipline-free and he too was hired in April 2006.
Safety a primary consideration
In the course of their work, both workers were required to operate torque guns and move through pedestrian and forklift traffic on a busy production floor. Safety was a primary consideration at the plant.
The third worker terminated did not pursue his grievance, which was dismissed.
D.J. was summoned to a meeting near the end of his shift at 3:00 pm on Feb. 28, 2011. A union representative was present along with management representatives and a representative from the private investigator’s firm. D.J. was presented with a termination letter and given a moment to read it. The meeting lasted less than two minutes. D.J. was then escorted from the property.
P.E. went through the same process 20 minutes later. Neither worker was given an opportunity to speak at their respective meetings. The company made no further efforts to contact them.
The workers were consuming illegal drugs on company property, the employer said. They were putting other employees at risk while at work and endangering the public by driving after work. Their conduct was “gross and serious.” Termination was the appropriate penalty in the circumstances.
The Arbitrator disagreed.
The conduct of D.J. and P.E. was “illegal, unsafe, egregious and incredibly stupid,” the Arbitrator said.
Plant rules allowed that the employer “may” terminate workers for such a first offence and certainly the company’s desire to make an example or P.E. and D.J. was understandable.
Deterrence was a valid and defensible motivation for the company in the circumstances, but it was not the only consideration. Rehabilitation was also an important factor, the Arbitrator said.
The union argued that the employer’s failure to call a meeting with the workers within 48 hours of the termination as required by the collective agreement violated their rights and rendered the discipline null and void.
The company’s failure to contact the workers was indeed an egregious breach of the collective agreement’s disciplinary regime, the Arbitrator said. But, it was a breach of a procedural right, not a substantive right. The workers were not prejudiced by the failure. However, as the workers were denied their contractual right to a post termination meeting, their apparent failure to apologize to the company for their conduct before the arbitration could not be counted against them.
The workers were contrite, the Arbitrator said. Their apologies were sincere and heartfelt. They had lost a year of salary and they had learned a hard lesson.
The Arbitrator was entitled to exercise discretion to modify the penalty of termination in appropriate cases. This was such a case.
The workers had discipline-free records. The evidence showed that they were punctual and conscientious employees with more than five years’ service. The employment relationship was salvageable, the Arbitrator said.
The employer’s legitimate interest in deterrence and the principles of progressive discipline would be served by an effective one-year suspension.
“The conduct of the Grievors was unacceptable. The Company had just cause to discipline them. Losing a year’s salary should send a strong deterrent message to the [employer’s] workforce that smoking marijuana on Company property will not be tolerated.”
The workers were reinstated under the terms of Last Chance agreements.
Reference: CAW, Local 1256 and Automodular Corporation. Ian A. Hunter — Sole Arbitrator. Shane Wark for the Union. Lorenzo Lisi for the Employer. Feb. 27, 2012. 28 pp.