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Employee sleeping on the job is reinstated as a result of lenient past practices and poorly drafted Disciplinary Policy

Cameco Corporation and United Steelworkers, Local 8562 (Grievance of Robert Davis)  should serve as a cautionary tale of what can happen if employers draft disciplinary policies and implement disciplinary procedures that do not reflect real world business, employment and safety concerns.   In this case, the employer, Cameco Corporation (“Cameco”), was handcuffed by the very policies they drafted to protect their interests and were forced to reinstate a head security guard that otherwise would have rightfully been dismissed with cause for sleeping on the job.

Background

Cameco Corporation (“Cameco”) converts uranium into other compounds and is regulated by the Nuclear Safety Commission.  The compounds and chemicals at Cameco are extremely hazardous to employees, the surrounding community and can be extremely hazardous if third parties with improper motives obtained access to the facility.  As such, this facility has installed specific security equipment and hired guards to keep the facility secure.

Robert Davis (“Davis”) was a Plant Guard, a Group Leader responsible for all other guards on the shift and a member of the Emergency Response Team.  Davis’ position pays a premium due to his lead role which he has had for five (5) of the sixteen (16) years he has been with Cameco.

Incident

On February 7^th, 2011 Davis was once again on shift and responsible for the guards working the 7pm to 7am shift.  On this day at about 3:30am Cameco conducted a “security readiness test and audit” of the shift.  The test/audit involved an attempt by two managers of the Security Department to breach the perimeter and enter the facility.  The test / audit was captured by the security monitors and alarms in the main guard house as expected however the managers of the security department were not intercepted by the security team.   Instead, the managers conducting the audit gained entry to the main guard house only to find Davis and another guard asleep with their chairs reclined, their feet up on the desk, Davis’ boots off and a DVD on the counter.  The managers concluded that both individuals not only fell asleep but intended to sleep and were “nesting”.

Decision

Arbitrator Randall found that Davis clearly fell asleep and had been “nesting” which given his duties and the potential catastrophic consequences of his failure to attend to them with diligence was on the legal standard of just cause for termination.  In addition, his long term service, good discipline record and family status were not in the opinion of the Arbitrator sufficient to mitigate the penalty of dismissal with cause.

However, despite the above, the Arbitrator did not find the dismissal was made with just cause due solely to Cameco’s own policies and practices.  “Arbitrators have long insisted that the clarity of a policy (and certainly one related to the misconduct in question) is an important mitigating factor in the assessment of a penalty.”   In Cameco’s case their policy stated that “sleeping on the job” was subject to corrective discipline in the form of verbal or written warnings and “serious violation of plant safety rules” was found ambiguous.  Moreover, other instances of employees sleeping of the job, while likely not as serious, was also only met with the issuing of warnings which in Chair Randall’s opinion only had the effect of underscoring the ambiguity.

As a result, the Arbitrator substituted a significant but lesser penalty.   Mr. Davis was to be considered suspended for approximately a full year from the date of the incident without compensation though he would still acquire seniority.  In addition, Mr. Davis he was removed as a Security Group Leader and could not apply for the position until approximately the 2 year anniversary date of the incident. Lastly, Davis was subject to a “last chance” agreement for a two year period from April 1, 2012 until March 31, 2014 whereby if the Cameco proves Mr. Randall was guilty of sleeping on the job or any other serious infraction they could then dismiss him with just cause.

Lessons for Employers

The test for just cause dismissal is already often a difficult standard for employers to prove.  As a result, when drafting policies and procedures it is important not to remove your common law or statutory rights as doing so will only make the exercise of establishing “just cause” more difficult.

The CCP team has considerable experience drafting and reviewing discipline policies, determining whether there is “just cause” and advising on appropriate discipline in all given circumstances.  Consider consulting a CCP lawyer prior to dismissing an employee and/or implementing your discipline policy.

?Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.