Termination excessive for unauthorized break

The grievor was caught watching a movie at work and was fired. The arbitrator found that the company's characterization of the event was excessive and substituted a lesser penalty.

A worker on the night shift was fired after he was caught watching a movie on a portable DVD player. The employer alleged time theft. The union grieved.

U.R. was a maintenance mechanic at a large industrial bakery. He had about two years’ service when he was fired on Aug. 23, 2011. There was no discipline on his record at the time.

U.R. was working with two other maintenance mechanics on the overnight shift that ended at 6 a.m. on Aug. 15, 2011.

On the night shift, the mechanics were expected to respond to calls to repair, maintain and troubleshoot the various lines in the bakery. They worked without direct supervision and without set times for breaks. The mechanics were paid to be on call during their breaks, which they co-ordinated with their colleagues to ensure that someone was always available.

The production supervisor paged U.R. at about 2:15 a.m. on Aug. 15 to assist with a problem. He paged again about three minutes later when he got no response.

At 2:35 a.m., the supervisor checked in at the maintenance shop. Upon arrival at the shop, he looked through the window and saw U.R. wearing large headphones and watching a portable DVD player. The supervisor retreated without alerting U.R. and returned with another supervisor.

Time theft

U.R. admitted on the spot to the supervisors that he was watching a movie. He also admitted that he was not on a break at the time.

However, U.R. changed his story over the course of two separate interviews about the incident.

U.R. said the supervisors misunderstood his initial statement. U.R. maintained that he was on a break. Moreover, he wasn’t simply watching a movie, he said. In the later interviews, U.R. said he was repairing the volume control on the DVD player while on his break, which was why he had the headphones on. He said too that the supervisor’s actions were tainted by animus stemming from an earlier disagreement.

U.R. was fired.

The employer said it had just cause to fire U.R. Time theft was serious misconduct and, in this case, the offence was compounded by U.R.’s dishonesty after the incident. Because of his dissembling and failure to take responsibility for his actions, the employer was no longer able to trust U.R. to work independently. There were no particular mitigating factors to warrant reinstatement, the employer said. U.R. was a short-service employee. Termination was appropriate.

The union said that U.R. was on a break. U.R. had acknowledged that he violated company policy by using personal electronics at work. However, the union said that workers were commonly seen reading newspapers and consulting their cell phones while at work. The employer condoned the practice.

Even if U.R. was not on a break, termination was an excessive response, the union said. U.R. was caught watching a movie while at work. He had apologized. If discipline was necessary, the principles of progressive discipline should be followed, the union said.

The Arbitrator agreed.

U.R. was not on a break. Nor was he fixing his DVD player. He was in the maintenance shop wearing headphones and watching a movie during work time, the Arbitrator said.

Time theft charge inflated

This was not a trivial offence, the Arbitrator said, but neither was it the “kind of egregious or presumptive offence that would justify the immediate dismissal of the grievor rather than the application of a progressive disciplinary approach to correct the grievor’s behaviour.”

Moreover, the employer’s characterization of the offence itself was questionable, the Arbitrator said.

“The employer characterizes the offence as time theft. This phrase seems to be a relatively new phrase to describe or capture an array of offences by employees ranging from the minor to the very serious… It is a phrase that has a tendency to inflate or feed the seriousness of offences that otherwise, would likely be considered minor or moderately serious offences. Offences ought not to be considered more serious than is warranted by the circumstances simply by labeling the infraction ‘time theft.’ ”

U.R.’s real offence was taking an unauthorized break from work for 15 minutes, the Arbitrator said.

Termination was excessive in the circumstances.

However there were significant aggravating factors. U.R.’s conduct was premeditated. He lied about what really happened and his subsequent apologies were not particularly fulsome. U.R. also falsely impugned a supervisor’s motives in an attempt to deflect from his own responsibility.

With no aggravating factors in play, a five-day suspension without pay would be the appropriate penalty for taking an unauthorized break.

The Arbitrator added 10 days to make for a 15-day suspension without pay in response to U.R.’s conduct after the offence.

Reference: Canada Bread Company and Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees, Teamsters Local Union No. 647. George S. Monteith — Sole Arbitrator. Paul A. Young for the Employer. Micheil M. Russell for the Union. Aug. 3, 2012. 26 pp.

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