IN THE MATTER OF AN ARBITRATION BETWEEN: I.G. MACHINE & FIBERS…

vaishnavij09 IN THE MATTER OF AN ARBITRATION BETWEEN: I.G. MACHINE & FIBERS…IN THE MATTER OF AN ARBITRATION BETWEEN: I.G. MACHINE & FIBERS LTD. AND: UNITED STEEL WORKERS OF AMERICA, LOCAL 9042 AND IN THE MATTER OF THE TERMINATION GRIEVANCE OF DAVID BERUBE SOLE ARBITRATOR: O.B. SHIME, Q.C. APPEARANCES: CLAUDE J. DENIS COUNSEL, and others for the Company CATHY DAVIS REPRESENTATIVES, and others SEAN LOGAN for the Union A hearing was held in this matter at Brampton on November 16,2004 AWARD In this matter the grievor claims that he was unjustly discharged. There is very little dispute about the facts. On July 12, 2004, the Company, by letter, terminated the grievor’s employment. The letter of termination provided as follows: Re: Termination of Employment Mr.David Berube: A series of disciplinary warnings in relation to poor attendance have been issued to you in the course of your employment with IG Machine & Fibers Ltd including written warnings, a probationary period and suspensions. The most recent, a twoday suspension was issued on June 21, 2004. Despite this, you were absent from your scheduled shift on July 6, 2004 without a valid reason. In addition, you arrived for your shift on July 7, 2004 one-hour and fifteen minutes late. This behaviour is unacceptable, and it is therefore the decision of the Company to terminate your employment with IG Machine & Fibers Ltd. effective immediately. All items provided by the Company (including safety glasses, bump cap and coveralls) are to be immediately returned to your Supervisor. Yours truly, Tony Querques Plant Manager cc: United Steelworkers of America At the time of his termination the grievor had been employed by the Company for approximately three and one-half years. His employment commenced in 2001 and his record of employment indicates the following: 1) On April 3rd, 2002, the grievor was given a written warning for absenteeism, 2) On June 4, 2002, the grievor was given a second written warning for absenteeism. The grievor was also informed that employees are expected to be at work for their regularly scheduled shift and if his behaviour was not corrected he would be subject to further disciplinary action up to and including suspension or dismissal. 3) On March 10th, 2003, the grievor was given another written warning and suspended for two days for both being late and also absent and was told his poor attendance was unacceptable. The grievor was also told he was expected at work and on time for his regularly scheduled work hours and was further informed that he had failed to notify the HR Co-ordinator that he would be absent. At that time the grievor was on modified hours as a result of a workplace injury and the Company informed him he had ample time to perform personal business because of his modified hours. The grievor was cautioned that if his behaviour was not corrected immediately, his employment would be terminated. 4) On June 6th, 2003, the Company again confirmed the grievor’s poor attendance record and indicated that on May 28th,June 3rd and June 5th, 2003, the grievor had arrived late, and on May 30th, 2003, the grievor called in sick and was absent from work. The Company indicated the grievor’s poor attendance and lateness would not be tolerated. There was a further meeting with the Plant Manager, the Human Resources Coordinator and a Union steward where the grievor indicated he would take responsibility for his actions and would not be late or absent from work again. The grievor stated he would purchase a new alarm clock to help him wake up earlier. As a result the Company informed the grievor he would be on probation until August 5 th, 2003, and if he arrived late or was absent for any reason, his employment would be immediately terminated. The Company also advised if he was absent as a result of an emergency proof of that emergency and proper notification must be provided. The notification of June 6th, 2003, and the probationary period did not deter the grievor. He was again late on August 20th, August 27th, September 4th and October 27th shortly after the probationary period expired. On these occasions the Company took no action. However, the frequency of his coming in late after the expiry of the probationary period is indicative of the grievor’s attitude. On March 9th, 2004, the Company notified the WSIB as to the grievor’s wrongful absence on February 27th and March 5th and indicated that the grievor should not be paid for those days. However, the Company on that occasion took no action.The grievor was again late on March 19th, 2004 and on June 17th, 2004, but again the Company did not take any action. 5) On June 21st 2004, the grievor received a two day suspension for reporting for work thirty minutes late while under the influence of alcohol and was sent home. The suspension indicated further infractions could result in disciplinary action up to and including termination of employment. On June 24th, 2004, the grievor met with his Union representative to discuss his attendance and then went on vacation on June 28th until July 5th, 2004. The grievor was to return from his vacation on July 6th but did not return and reported one hour and fifteen minutes late on July 7th, 2004. The grievor maintained that while he was on vacation he injured his ankle; he filed a receipt for crutches indicating that on July 4th, 2004 he paid a deposit of $15.00 for crutches which were issued to him by St. Joseph’s General Hospital in Elliot Lake. The grievor explained that he had injured his ankle and because his other ankle was weak as a result of the workplace accident for which he received Worker’s Compensation he was unable to attend work on July 6th, 2004. The grievor maintains he phoned the plant on July 5th, 2004 at 6.30 p.m. and left a message that he would not be in on July 6, 2004. Mr. Tony Querques, the Plant Manager, testified he had been informed by the superintendent that the grievor had called in on July 6th, 2004. However, Mr. Querques’ information was received from another person and on this important issue I prefer the grievor’s evidence to the hearsay evidence of Mr. Querques. Also I have no reason to disbelieve the grievor. Accordingly, I find that the grievor did phone in on July 5th, 2004, to report that he would be absent on July 6th. However, the grievor was one hour and fifteen minutes late on July 7th, 2004, and his lateness on this occasion is sufficient to constitute a culminating incident. I note that this lateness occurred approximately two weeks after receiving the two day suspension on June 21st, 2004, for reporting late and after a discussion with his Union representative who had been requested by the Company to assist in remedying the problem of the grievor’s lateness and absenteeism. The grievor is a young employee without long seniority and his employment record indicates, notwithstanding that the Company has disciplined him and taken other corrective action with respect to his attendance and lateness, that the grievor has not responded to the Company’s efforts. If anything, the grievor seems to have completely ignored the discipline and warnings he received, including warnings he might be eventually terminated. Indeed, the latest incident of his lateness on July 7 th, 2004, occurred just after he had had a vacation and approximately two weeks after he had received a two day suspension and after he had discussed the situation with his Union representative. In his evidence the grievor indicated some remorse. His remorse was to the effect that he was currently employed in a non-unionized environment where the wages and benefits were considerably lower than what he had been receiving in the unionized environment with this Company. However, his statement of remorse, while it reflects a concern for the loss that he had suffered does not indicate any appreciation for the difficulty that he has caused the Company by his poor attendance and lateness. The Company has a small workforce and it is very difficult to organize its operations when faced with an employee who consistently comes in late and fails to attend at work without notifying the Company. These short culpable absences, coupled with the failure to notify the Company that he will be late has created considerable difficulty, particularly in a Company where there is a small workforce. The Company has been put to time and expense to suddenly readjust its workforce and its operations in order to accommodate the grievor. The Company has gone to great lengths to caution the grievor about his poor record and has warned the grievor on a number of occasions and then twice suspended him with the appropriate warnings about possible termination if he continued to behave in the same way. In addition, the Company provided the grievor with a four month probationary period where he was cautioned about his attendance and where his absence and lateness were discussed so that the grievor was well aware of the Company’s concerns. On that occasion, the grievor had promised to improve his attendance and lateness but as soon as the probationary period was over he seems to have ignored the ample warnings from the Company and continued to be both late without calling in and also absent without excuse. In addition, the Company, being concerned about the grievor’s attendance and lateness quite properly enlisted a Union representative to speak to the grievor. That, too, did not have any impact on the grievor, because soon after his discussions with the Union representative the grievor again reported late. After reviewing the grievor’s record and the evidence, and notwithstanding the able argument of the Union representatives on his behalf, it is my view that the grievor has been given ample opportunity to change his behaviour. Notwithstanding that corrective and progressive discipline has been imposed, and notwithstanding both the Company and the Union have discussed the grievor’s attendance and lateness with him, the grievor has continued to ignore these efforts to remedy his situation. The grievor has been totally unresponsive to attempts to remedy his behaviour which makes him a poor candidate for future rehabilitation. There is a point reached by an employer, who has made every effort to both warn and assist an employee about his employment record, where further action by the employer would appear to be of no avail and termination is the only justifiable alternative. In these circumstances the Company quite properly has reached the end of its rope, and I am unable to conclude the Company did not have just cause to dismiss the grievor. However, the grievor is a young man and while he is currently gainfully employed, hopefully this termination may serve as a wake-up call for him for future employment. So that this termination will not haunt him into the future, I further determine if the grievor submits a letter of resignation to the Company within thirty days of the parties receiving this award the Company will remove any reference to discharge from his employment record and note in its place that the grievor has resigned. Further, if any enquiries are made of the Company in the future from prospective employers, the Company shall not refer to the grievor’s discharge or employment record but shall respond by providing the dates of his employment and merely indicate that he resigned. Subject to the foregoing the grievance is dismissed. DATED AT TORONTO THIS 19th DAY OF NOVEMBER, 2004. Owen B. Shime, Q.C. QUESTIONS TO ANSWER: read and answer the following questions about that case:Name of the arbitrator, the parties to the arbitration, and the date of the decision.Name all witnesses who testified at the hearing and a brief account of their evidence.Summarize the evidence produced by both sides of the dispute.Describe at least two arguments raised by each party.Describe the decision of the arbitrator and the reasons provided.If you were the arbitrator what would be your decision? Provide reasons as they relate to information learned in the course.BusinessBusiness – Other