Termination warranted for culpable misconduct

Unable to book vacation around his approaching wedding, the grievor simply had it entered in the work schedule during his supervisor’s absence. His dishonesty violated the grievor’s Last-Chance Agreement.

Denied his request for time off, a worker was fired for misconduct after it became apparent he had exploited his supervisor’s absence to imply he had permission to take time off.

A.V. was an Assistant Grocery Manager at a retail grocery store. A.V. was a long-service worker. He was also subject to the terms of a Last Chance Agreement (LCA) that provided for his termination in the event he was insubordinate.

The Store Manager returned to work on Sept. 2, 2008 following the Labour Day long weekend and after taking holidays the last week of August. When the manager noticed that A.V. was to be off work that week, he inquired after A.V.’s whereabouts. The Assistant Store Manager said that A.V. was on vacation.

The Store Manager called A.V. at home and left a message. A.V. did not return the call. He did not show up for work that week.

A.V. was called in to a meeting on Sept. 9. The Assistant Store Manager denied having any discussions with A.V. about him taking holidays on Sept. 3, 4, 5 and 6. A.V.’s explanations failed to satisfy the employer.

A.V. was fired. The union grieved.

A.V. said he believed he had authorization to take that week off. A.V. claimed he had arranged for the time off surrounding his Aug. 31 wedding during a meeting with the Store Manager in mid-August. Also, the schedule showed he was to be on vacation during that time, so it was reasonable for him to believe he was on vacation when he was absent from work on Sept. 3, 4, 5 and 6.

No permission given

The Store Manager denied he had given A.V. permission to take that time off. The Store Manager said A.V. made the request on short notice and that A.V. was needed to cover for the receiver who was on holiday. The best he could do in the circumstances was to give A.V. a five-day weekend, with two days on either side of his planned Aug. 31 wedding.

A.V. testified that the Store Manager responded to his request for time off by saying he was having difficulty with the schedule but he would get back to him.

On Aug. 26, while the Store Manager was on vacation, A.V. approached the other Assistant Grocery manager who was responsible for making up the work schedule while the Store Manager was absent. A.V. reminded him he was getting married and he would be taking the following week off for holiday.

Later that day, A.V. made the same pitch to the worker who actually made up the schedule, reminding her of his impending wedding and that he was taking holidays the week following.

That worker noted that with A.V.’s absence, the store would be short-handed in the receiver position. She consulted the Assistant Store Manager. They assumed A.V.’s vacation had been approved and adjusted the work schedule accordingly. Neither consulted the vacation schedule.

At noon on Aug. 28, the work schedule for the following week was posted. It showed A.V. on vacation.

Culpable misconduct, dishonesty

The employer said A.V.’s termination was warranted. He was absent without authorization and he had engaged in culpable misconduct. His dishonesty amounted to a breach of trust — he was, therefore, in violation of his LCA.

The Arbitrator agreed.

There was no reasonable basis for A.V. to believe that he was authorized to take those days off, the Arbitrator said.

“In my view, the posted schedule could not and did not give rise to such a reasonably held belief, given the nature of [A.V.’s] conduct throughout. In that regard, the evidence compels the conclusion that his conduct was calculated, manipulative, lacked honesty of purpose, and was culpable. [A.V.] effectively disregarded the known fact that the matter was closed, after [the Store Manager] did not authorize his vacation request. Instead of leaving it at that, he illegitimately attempted to bypass [the Store Manager’s] final decision, while [the Store Manager] was off on holidays. I further find the following self-serving testimony to strain credulity and not to be in harmony with the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.”

A.V.’s “proven dishonesty and culpable misconduct” violated his LCA, the Arbitrator said.

“On the facts, there is no principled basis to disregard the terms of the LCA, notwithstanding [A.V.’s] many years of employment.”

The grievance was dismissed.

Reference: Loblaws Supermarkets Limited and United Food and Commercial Workers, Local 1000A. Randy L. Levinson — Sole Arbitrator. Genny Na for the Employer. Sheilagh Turkington for the Union. Nov. 14, 2011. 14 pp.

Latest stories