Worker dismissed for absenteeism, then theft
Shane Malcolm filed grievances against Glencore Canada after the employer fired him, and then fired him again.
First, Malcolm was terminated for excessive absenteeism in breach of his final chance agreement with the employer’s New Brunswick-based smelter work site.
A week after Malcolm’s firing, the employer gathered his belongings from his secure lockers on the work site, as per its policy. A small piece of silver and a clear plastic bag containing marijuana were discovered among his possessions.
The employer issued a second dismissal, citing the theft of silver material from the work site and Malcolm’s violation of the company’s alcohol and drug policy.
Malcolm’s union — the United Steelworkers (USW) Local 7085 — filed grievances related to each of the terminations. Malcolm testified his ongoing absences were a result of his travelling to obtain methadone as part of his drug addiction treatment and the union argued both dismissals were related to Malcolm’s ongoing back handicap and drug abuse addiction, both of which required accommodation.
The union requested Malcolm be reinstated and compensated for back pay and lost benefits.
The employer, however, argued Malcolm met with managers on several occasions as part of the company’s absenteeism program and never raised the issue of a disability or requested accommodation.
When Malcolm’s absenteeism continued to be a problem a final chance agreement was struck.
When Malcolm’s continued absenteeism breached that agreement, he was terminated.
Following his dismissal, security staff cleaned out Malcolm’s employee lockers in order to return his belongings. The piece of silver was estimated to have a value of about $10. The RCMP was called to seize the marijuana.
A second letter of termination was drafted and sent to Malcolm, but no meeting was held as he was already fired.
Malcolm testified he had no idea how the silver came to be in his locker.
Concerning the marijuana, he claimed it was left behind several years before by RCMP officers destroying seized drugs using the employer’s equipment. Malcolm said he planned to have the marijuana burned, but forgot it was in his locker.
According to Malcolm, his short-term memory has been affected by his habitual drug use, saying his "brain doesn’t work as well as it used to."
However, Malcolm’s doctor testified he has made significant improvements following his termination and could safely return to work with accommodation.
The employer argued against reinstatement, citing the safety-sensitive nature of the workplace and Malcolm’s lack of credibility, as well as his refusal to take responsibility or show any remorse for his actions.
Arbitrator Robert Breen found Malcolm’s drug addiction and back handicap were motivating factors to his firing — both informed his ongoing absences — and ruled the employer was required to accommodate Malcolm’s disabilities to the point of undue hardship.
Breen allowed both grievances, in part. No intent to steal the silver was established, and he therefore found no cause for discipline relating to the silver found in Malcolm’s locker.
Concerning the bag of marijuana, Breen was satisfied Malcolm did in fact forget about the drugs in his locker in light of Malcolm’s own issues with addiction.
He ordered Malcolm be returned to his workplace under several conditions. Malcolm was ordered to serve a two-month suspension without pay for the possession of marijuana.
Following that suspension, Malcolm was ordered to return to work and be reinstated with all back pay and benefits owed to him.
The employer and union are to share in that monetary compensation. Additionally, Malcolm will remain subject to ongoing drug screenings.
Reference: Glencore Canada Corporation and the United Steelworkers (USW) Local 7085. Robert D. Breen — Arbitrator. Jamie Eddy for the employer, Brenda Comeau for the union. Oct. 15, 2015.