An employer's ambiguous disciplinary policy and lenient past
disciplinary practice has caused it to lose an otherwise strong
just cause dismissal case.
After several security lapses at its Port Huron uranium
conversion facility, Cameco Corp. conducted a "security
readiness test and audit" of its night shift on
April 17, 2011. At approximately 3:30 AM two managers from
Cameco's Security Department breached the facility's
security perimeter. Although the breach set off an alarm and
was captured by monitors in the main gate house, the would-be
intruders were not intercepted. Instead, the managers were able to
travel unimpeded to the main gate house where upon arriving, they
discovered the Grievor, a plant guard and supervisor, and
one of his subordinates fast asleep.
Both employees were fully reclined and had their feet up on the
desk. The Grievor had also removed his safety boots. It
was subsequently acknowledged that the Grievor had watched a
movie while on shift and that contrary to company policy, he had
filled out his shift log at the beginning rather than the end of
his shift. As a result, the Grievor's log was not an
accurate reflection of the assignments or events that had actually
happened during his shift.
Given the Grievor's multiple infractions of
company policy and the significant safety risk posed by his
dereliction of duty, Cameco terminated his
employment, claiming just cause.
At the arbitration hearing that followed, the union denied that
the Grievor had intended to fall asleep.
Alternatively, the union argued that the Grievor was ill and
that he had only taken off his safety boots because his feet were
sore. The union further argued that Cameco should be
prevented from relying on the Grievor's movie watching
and poor log keeping since Cameco had not instituted a
clear policy on either of these matters nor had it consistently
enforced any sort of rule regarding such conduct. However,
most importantly, the union argued that because
Cameco's disciplinary policy listed "sleeping on
the job" as misconduct which warrants only a verbal or written
warning, it could not depart from its own policy and institute
a punishment that was more severe.
Despite recognizing the importance of maintaining
the facility's security, the
arbitrator nonetheless ordered the Grievor's
reinstatement (albeit to a lower level position and according
to the terms of a "last chance" agreement). The
arbitrator agreed with the union that Cameco had effectively
condoned the Grievor's conduct with respect to the movie
watching and log keeping and therefore could not now rely on either
of those matters in support of its decision to terminate the
Grievor's employment. The arbitrator ruled that the
"Grievor's falling asleep and apparent 'nesting',
given his duties and the potential catastrophic consequences of his
failure to attend diligently to them, is on the legal
standard, just cause for termination". However, the
ambiguity in Cameco's disciplinary policy and its apparent past
practice of issuing warnings to employees who had previously been
found sleeping meant that the employer did not have just cause.
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