Sleeping worker saved by mitigating factors

The grievor’s misconduct was serious, but his long service weighed in his favour. Further, inconsistency in the employer’s response to the events and exaggeration in its case against the grievor prompted the arbitrator to reinstate him.

Fired after he was caught sleeping on the job, a control room operator grieved his termination.

Hired in 1989, C.H. worked as a Control Room Operator at a plant that produces chemical refrigerants used in air conditioning systems.

The manufacturing process is potentially extremely hazardous. A significant release into the atmosphere of either of the key component chemicals — Hydrogen Fluoride (HF) and Perchloroethylene DG (PCE) — could necessitate evacuations, the closure of adjacent highways and, possibly, the St. Lawrence Seaway.

Using computers and video monitoring, the job of the Control Room Operator is to monitor the key temperatures, pressure levels and flow rates at the plant to ensure they remain within established parameters. The Control Room Operator job is considered to be a safety-sensitive position.

Working the day shift on Saturday, January 9, 2010, C.H. was in the control room while his two shift mates were outside clearing snow around the facility.

At 1:20 pm, the on-call manager entered the control room and discovered C.H. sleeping. C.H. was fully prone, stretched across three chairs. His back was to the control console.

C.H. awoke shortly after the supervisor’s entrance. C.H. received a mild rebuke and was asked if he was okay to continue the shift. C.H. answered in the affirmative.

“Asleep at the wheel”

C.H. met briefly with the operations manager later that afternoon. C.H. was told not to report for work the next day and to prepare a written list of reasons why he should not be “asleep at the wheel” while in charge of a hazardous process.

Later, C.H. was telephoned at home by his supervisor and told to attend a meeting on January 19. C.H. apologized and said that he did not intentionally fall asleep.

A letter outlining the company’s concerns about the incident was read aloud at the meeting. C.H. was asked if he had any response. C.H. then read the list of reasons that he had been asked to prepare.

C.H.’s supervisor and the Human Resources manager left the room. When they returned 10 minutes later, C.H.’s supervisor read the last two lines of the company’s letter, which said that C.H. was terminated effective immediately.

The union grieved.

Termination was warranted, the employer said. C.H. claimed he had inadvertently fallen asleep when in fact he had pushed the chairs together and fashioned a makeshift pillow. He had “nested,” the employer said. An employee in a safety-sensitive position who purposefully sleeps on the job is putting his or her job at risk.

The hazards at the facility were very real, the employer said. C.H.’s actions and his failure to admit to them had created an irrevocable breach of trust. The employment relationship had been irreparably harmed and the discharge should be upheld, the employer said.

The union disputed the “nesting” charge. C.H. had not hidden away in a quiet place. He had inadvertently fallen asleep at his workstation. He was not sprawled across three chairs and there was no makeshift pillow, the union said. It was unacceptable for C.H. to be asleep at his workstation. He did not deny that, nor did he deny that he was asleep. However, it was not appropriate for the employer to elevate C.H.’s transgression to a matter of trust. C.H. was “trusted” to finish his shift after he was discovered asleep, the union said.

Diagnosed with sleep apnea

Since the incident C.H. had been diagnosed with sleep apnea and was receiving treatment. Mitigating factors also suggested the discharge should be set aside, the union said.

C.H.’s story did not add up. The Arbitrator preferred the testimony of the on-call manager who said he found C.H with his back to the console, stretched out along three chairs that were lined up while resting his head on a makeshift pillow. “He did not inadvertently fall asleep at his post,” the Arbitrator said.

Sleeping on the job — either deliberately or inadvertently — while in a safety-sensitive environment is deserving of a severe disciplinary sanction up to, and including termination, the Arbitrator said.

Moreover, denying that he had deliberately made a bed to sleep on did not serve to bolster the case for C.H.’s rehabilitative potential. Trust was clearly an issue, the Arbitrator said.

“However, even in cases where a grievor misleads the Employer and the arbitrator about his actions, arbitrators are not precluded from considering mitigating factors to determine if a discharge should be set aside.”

This was such a case, the Arbitrator said. A number of mitigating factors counted heavily in C.H.’s favour.

Mitigating factors

First, C.H.’s more than 20 years’ service was a significant mitigating factor in his favour. Second, the Arbitrator agreed with the union that the trust issue was not everything the employer made it out to be. C.H. was not immediately relieved from duty after he was found sleeping. He was not removed from the control room and he was allowed to finish the shift in control of the plant.

Third, the disciplinary process followed by the company, including the investigation and the termination, was not sufficiently fair or just, the Arbitrator said. C.H. was led to believe that he had a second chance when he did not. His response at the meeting was moot. The termination letter had already been written and C.H. was to be fired regardless of what he said.

Fourth, the employer also referenced C.H.’s “less than stellar” employment record for its case for termination. However, there was nothing in the record to warrant discipline let alone termination, the Arbitrator said.

Finally, the Arbitrator accepted that C.H. had sought out treatment and was receiving therapy for sleep apnea.

The Arbitrator set aside the termination and substituted a time served suspension.

Reference: Dupont Canada (formerly Invista Canada) and Communications, Energy and Paperworkers Union of Canada, Local 28-0. Sydney Baxter — Sole Arbitrator. Martin Denyes for the Employer and Phillip G. Hunt for the Union. May 12, 2011. 39 pp.

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