Loading...
HomeMy WebLinkAboutPurdy 05-04-21 ~q!Ll/¿~~b ~4:45 905-257-0481 PETER HETZ PAGE 02 0 \.-\-lo4\-O\~ IN THE MATTER OF AN ARBITRATION. BETWEEN: INTeGRATION COMMUNA T AIRE COCHRANE COMMUNITY LIVING {"Employer"}, AND: ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 641 ' . , e'Union"}, AND IN THE MATTER OF: GRIEVANCE OF: Carole¡Purdy ("Grievor"). SOLE ARBITRATOR: Peter M. HetZ APPEARANCES FOR THE COMPANY: Tracy Kay - Counsel, Edith Belair - President of the Board of Directors, Terry Lyn Williams - Manager, Residential Services Chantal, Paquette - Day Program Manager And others. ' APPEARANCES FOR' THE UNION: Will Presley Pauline Stewart - Grievance Officer & Advocate, - Uni~n President, Local 641. ' Hearings in the above matter was held In Cochrane, Ontario, on January 4, March 8 and March 9, 2005 ' . , ~4/¿1/2005 04:45 905-257-0481 PETER HETZ PAGE 03 AWARD I was aþpainted pursuant to s.49 of the Ont~rio Labour Relations Act, 1995 to hear the discipline grievance of Carole Purdy, ("Griever"), a staff counselor, who. was discharged on December 2, 2004 far sleeping an the jab. The Griever, who. is the Vice President of the Unian local and'the Chair ef the Jeint Health and Safety Cemmittee, dees 'not deny that she was sleeping. The Griever has 12 years' service with the Empleyer., The Grievpr received a positive perfo.rmance evaluatian in May of 2002 and has not received one since. The follewing facts are net ,generally in dispute. The Empleyer operates three , , group hemes fer disabled' adults ("Clients"), the Seventh Street heme, the Seventeenth Avenue home which has higher functiening adults who can walk and talk and the Third Avenue heme, which is, the one in questien. , , Two. counselo.rs are assigned to each shift at :the Third Avenue facility where the clients are severely disabled, unable to. care for themselves and require 24-haur care. There are six clients, five ef whom cannet walk and have to. be lifted into. and out of thai'r wheel chairs by, way ef a mechanical lift, which generally requires two. staff ceunselers to. eperate. There are three bedreems, feur clients share ene while the remaining two have their ewn reem. Only two ef the clients can f~ed themselves. As well, two. of the clients take part in the day program fer four: heurs, Menday to Friday while the ether three clients remain in the heme during the day and two staff ceunselers remain with them: These three clients suffer: frem seizures and one af the three is quite heavy, weighing approximately 230 to 250 paunds. Generally, staff ceunselors werk 12-heur shifts, 7:00 a.m. 10'7:00 p.m. and 7:00 p.m. to. 7:00 a.m. 2 , ' ' ~4/¿~/¿~~~ ~4:4b 905-257-0481 PETER HETZ PAGE 04 The work of a staff counselor is described as physical and involves preparing meals. feeding and bathing clients, cleaning, and laundry, washing floors, disinfecting washrooms and repositioning the ~líents every two hours. The clients are also checked every two hours to see if t/:1ey have wet themselves, in which case the bed'sheets are replaced, if required, and the clients' clothing change~. It is not uncommon for clients to frequently wet their beds. In order to change the whole bed, the client has to be moved 3 or 4 times and although this can be done alone, it is very difficult. Client changes are not supposed to be done alone to prevent a client from falling out of bed or onto a staff counselor. Changing clients requires physical effort and help is needed to help hold the clients while :they are cleaned and their clothes and beds are changed. From 7:00 pm to 9:00 p.m. the focus is on ~he residents who get snacks, are bathed and given medication. The other du~ies are done when the clients are asleep, in between client changes. The duties are generally evenly divided between the two staff counselors and a decis'ion is made at the beginning of the shift what each will do. Periodic checks are done and staff counselors are in and out of the rooms all of the time. There may be some down time during the shift and staff counselors are free to read, watch TV or complete their reports, but are not allowed to sleep. The laundry room is situated in the basement and when one of the staff counselors is doing the laundry, the other wçuld stay on the floor. In the event that a client suffers a seizure, one staff counselor would stay with the client while the other would go and get the medication from the lock-up. As a result of a funding review in 2001, the' Ministry of Community and Social Services determined that the Employer was not on budget and needed to stop 3 04/21/2005 04:45 905-257-0481 PETER HETZ PAGE 11 she provided the Employer with a list of 7 previous dates during which the Grievor slept on the job and she understood that sleeping on the job could lead to dismissal. Ms. Prevost testified that as a consequence Qf the Grievor's sleeping, the floors and laundry' would not get done and that work would fall on the next shift to complete. It was her evidence that she completed the inquiry because she was concerned about the health and safety of the clients and; about having to change the clients alone. Ms. Prevost testified that she has nqt worked with any other employee who has slept on the job. In cross-examination Ms. Prevost testìfied that sometimes there is time to sit down and knit, go out in the' evening and have a cigarette and that if there were no chores left, one could relax or make one's meal until the next bed check. It . ., " ",." . ." .,.. . .... , " . I. 1 - ... n- ,_.. 04/21/2005 04:45 905-257-0481 PETER HETZ PAGE 05 double staffing at the Third Avenue home. The Employer contemplated the possibìlity of having s¡'ngle staffing and sleep shifts where only one staff counselor would be working a~d' the ot~er staff counselor would sleep. Because of concern for the safety of the clients and the staff, the proposal was rejected after input from variou$ stakeholders¡ including the fire chief, the Board, staff and the Joint Health and Safety Commit1~e. The Grievor also did not agree with single staffing. The proposal was rejected and other ways to reduce costs were examined. Terry Lyn Williams, the. Manager of Residential Serviçes, has been with the Employer si~ce January 2001 and has been: in her position since the Spring of , I . 2002. Chantal Paquette, the Day Program Manager, has been with the Employer , for 50me 7 years, the first two as a staff coÜnselor and the remaining five as a manager. As a staff counselor she worked the night shift at the Third Avenue home. Neither Ms. Paquette nor Ms. Willíam$ have the authority to discharge an employee. Both Ms. Paquette 'and Ms.' Williams oversee the day-to-day operations and report to the Executive Director, who reports to the Board of Directors. The Executive Director was on 'a le'ave of absençe at the time in question and was being replaced by Ms. Edith Belair, the Chair 9f the Board of Directors. Mr. Real Cousineau is a Board member at large' and has a son who is a client at the Third Avenue home. Another Vice-President of th~ Board has a son who is a client at the Third Avenue home. During the September-October 2004 time-fr~me, there were "grumblings" and verbal, complaints that some employees were sleeping on the job although there were no specifics,to the complaints and "grumblings" such as who and/or when. At that time, employe~s were reminded that sleeping on the job was not pennitted and told to "write it down" or call the managers, but no one did, until November 27'h. However, one employee, Francine Quirk, had complained that, 4, " " , 04/21/2005 04:45 905-257-0481 PETER HETZ PAGE 06 another employee, Peter Vetman, had been sleeping on the job. Ms. Paquette spoke with him but never caught him sleeping. He was not disciplined because it would have been his word against the word of Ms. Quirk. There is a Code of Conduct and Discipline, ("Code"), which is used for disciplinary purposes and lists various transgressions and their potential discipline. The Code is kept in a policies and procedures binder at each of the homes. New employees are oriented on the policies and procedures according to an orientation list when they are hired and when new policies are issued, a message is posted. Item #5 in the Code deals with sleeping on the job as follows: Employees are not to ,sleep during working time, including night shift. Infractions may result in dismissal. On November 14, 2004, Rhonda Prevost, a staff counselor, completed the following Health and Safety Inquiry ("lnquirY") addressed to Ms. Paquette and Ms. Williams and placed it in tile mail bin of Ms. Williams who was away at the time: I'm concerned for the clients' safety and welfare as staff is left alone while doing changes during night shift. Reason being full time staff sleeping. I don't think that it is, my responsibility to wake staff up. When I work with a certain staff I might as well consider myself alone to do checks, changes & her chores. Ms. Paquette read the inq~iry, checked the work schedule to determine with whom Ms. Prevost was working. Ms. Prevost had worked with the Grievor two days prior to Ms. Prevost's inquiry. Ms. Paquette conducted spot checks but did not find anyone sleeping. One such spot. check was conducted at the Third 5 04/21/2005 04:45 905-257-0481 PETER HETZ PAGE 07 Avenue home at 3:00 8.m. where Lise Demerais and the Grievor were working together. Ms. Paquette did not speak with Ms. Prevost before starting the spot checks and did not follow up with her after the spot checks. The Grievor and Ms. Prevost, another staf( counselor, were assigned to the evening shift, from 7:00 p.m. Òn Friday, November 26th to 7:00 a.m. Saturday, November 2ih, 2004 at the Third Avenue home. Ms. Prevost has worked in a/l three of the homes during her almost three ye~rs with the Employer. At' around 1 :00 a.m. on November 27th, the Grievor laid down on a 'love seat and fell asleep until 5:30 a.m. At 3':00 a.m. Ms. Prevost contacted the on-call person, Tanya Perrault, for help. Ms. Per~ault contaCted Ms. Paquette who attended at the Third Avenue home, arriving at 5:00 'a.m. : When Ms. Paquette arrived she looked through the window which is along the driveway leading into the home ~nd saw the Grievor asleep on the couch, which is situated right beside the doorway to the hpme. The Grievor had her feet up and her head on the arm' of the couch. Ms. Paquette also saw Ms. Prevost going into a client's room with bed shf~ets. Ms. Paquette then entered t~e home, did not,' attempt to wake or say anything to the Grievor, even though, Ms. Paquette, had to walk past the Grievor, and proceeded to the room where Ms. Prevost was changing the bed sheets for the heavy client who also suffers from seizures. The client was wet from head to toe, his bed was fully soaked and the client was half asleep. Ms. Paquette and Ms. Prevost then checked the remaining clients at the home and all of the clients needed to be changed, :a process which took at least a half hour to complete and there was a lot of laundry on the floor. Duríng this time, the Grievor continued to sleep. ' 6 04/21/2005 04:45 905-257-0481 PETER HETZ PAGE 08 The Grievor woke up by herself as Ms. Paqu,ette and Ms. Prevost were leaving the last client1s room and looked at Ms. Paquette but did not say anything and proceeded to see what ne'eded to be done. Ms. Paquette stayed long enough to speak with the Grievor telling her that she would receive a "written report" The Grievor questioned why a "written" instead Qf a "verbal" and was told that the Grievor's sleeping on the job was serious. M~.' Paquette neither told the Grievor that she had to speak to the Board nor gave ,the Grievor any indication that she would be suspended or worse, and departed the home at approximately 5:50 a.m. Ms. Paquette spoke with M.s. Williams about the incident and they subsequently spoke with Mr. Cousineau and Ms. Belair oh December 1 2004, and all four made the decision to discharge the Grievor. ' There was no discussion that Mr. Coussineau's attendance was a conflict of interest because his son was a client at the home. EVIDENCE Chantal PafJuette It was her evidence that when the door leading to the home is opened, a buzzer goes off for security reasons and that the' Grievor did not move and did not wake up. Ms. Paquette also testified that some noise is involved in the process of changing beds and clients but that "you don't want to wake the clients". It was the testimony of Ms. Paquette that when the,Grievor awoke, she did not explain why she had been sleeping and did not apologize for sleeping. Ms. Paquette confirmed that she attended the discharge meeting on December 2nd, 2004. and that the Grievor neither apologized nor offered any explanation. Ms. Paquette also indicated that the Grievor, at the Step 3 grievance meeting, 7 04/21/2005 04:45 905-257-0481 PETER HETZ PAGE 09 explained that she had been taking medication for sleep apnea. Ms. Paquette stated that she was not aware that the Grievor was on medication and that the Grievor should have reported it to the Employer if the medication would affect her job and the Grievor would have been provided alternate work. Ms. Paquette gave evidence that prior to Nov~mber 2ih, she had no knowledge that the Grievor had been sleeping and that the November 2ih visit to the Third Avenue home was not a spot check. Ms. Paquette testified that she tried to get staff to provide a written report or to call the: managers and that the November 27th call was the first such call. In cross-examination Ms. Paquette agreed that during the 30 minutes that she was at the home she did not attempt to wake, the Grievor and that had she woke the Grievor, she could have helped with the work. Ms. Paquette testified that the sound made by the buzzer was not a "chiming" sound and that it was loud enough to her. Ms. Paquette testified that she could not recall if during her meeting with Ms. Williams, Ms. Williams had indicated what the level of discipline the Grievor should receive. She could neither recall who first suggested "dismissal" at the December 151 meeting and indicated that all four had participated and agreed on "dismissal". It was her further evidence that. her 3:00 a.m. spot check involving Ms. Demarais and the Grievor was purely coilJcidental. Rhonda Prevost Ms. Prevost testified that some clients are more prone to seizures than other clients and that some clients have seizures twice a day. Three of the clients have a seìzure every day and there are no warning signs. Clients experiencing a seizure can thrust, the eyes roll and they v6mit. It was her evidence that if a 8 04/21/2005 04:45 905-257-0481 PETER HETZ PAGE 10 single staff counselor was present during the seizure, the staff counselor would remain with the client. According to Ms. Prevost, on the morning of November 27th, the Grievor grabbed a green blanket off a client's bed and went. t.o ~ave a seat and went to sleep and Ms. Prevost did her 'chores. She testified that at. 3:00 a.m. she tríed to wake the Grievor by callíng her from the counter, 15 feet away, becäuse three or four of the clients were wet. She neither touched the; Grievor nor shook her because, as far 85 she was concerned, th~t was not her ¡job. When there was no reaction from the Grievor, Ms. Prevost called ~he o~-c~" person because she did not want to do all of the work alone. It was Ms. Prevost's evidence that the on-call person asked if she had tried t.o wake the Grievor. Ms. Prevost gave eviden.ce that at around 5:;15 a.m. she was in a client's room when she heard the buzzer at the front door and thought that it might be the Grievor. It was her evidence that the buzzer can be heard from everywhere in the home ,and that it "beeps" from all three doors. It was Ms. Paquette's testimony that she helped Ms. Prevost. change the clients' sheets from 5:15 a.m. and 5:45 a.m. It. was her evidence that, four clients were wet. and that two were , , , , soaked head to toe as well as the comforters. She indiGated that. two of the clients are normally wet like that around 5:00 a.m. It was the evidence of Ms. Prevost t.hat she did not see the Grievor wake up and didn't speak to her. The 'Grievor neither apologized nor spoke about it and Ms. Prevost was nervous when Ms. Paquette '~ft. According to Ms. Prevost, the Grievor told her not to worry about it. Ms. Prevost testified that this was not the first time that she had witness'ed the Grievor sleeping on the job: According to Ms; Prevost, the Griever always sleeps on the job and that it is not just dozing but sleeping and snoring and not for , , minutes but for hours. It was her evidence that at the request of Ms. Williams, 9 ~ 04/21/2885 21:21 : " 905-257-0481 PETER HETZ PAGE 01 she provided the Employer with a list of 7 previous dates during which the Grievor slept on the job and she understood that sleeping' on the job could lead , , to dismissal. Ms. Prevost testified th~t as ,8 consequence ~f the Grievor's sleeping the floors and, laundry would not g~t done and that work would fall on the next shift to complete. , , It was ~er evidenc~ that ,she completed, the inquiry because she was concerned about'the health' and ~afety of. the cl!ents and about having to change the clíents ' , ',' alone. 'Ms;, Prevost testified that sh~ has' not worked with any other employee who has:slept on the job. , In cross-examination Ms,' Prev~st' testified t~at sometimes there is time to sit , down and knit, go ,out ih,the ,Ëniening"~nd' have a ci~arette and that if there were , ,00 chores left, one ~uld r~lax or ~ake one'~,' m~al, until the next bed check. It ' was her. evidence' that the amount of the ti~e that, would be available to relax ' , , , ' " was perhaps, a half hour and:'that whether 's~e worked the day or the ëvening , ' , ' ,shift she had ch~re's stilf:not done by the end of the' shift. 'Ms. Prevo~t testified' she never 'told the Gri~vor that she was upset with her be,cau~e that was "~ot- harjob. She i:J',so testified 'that she called to the 'Grievor, "1~Car~l, 'wake up," and reiteratðd,'thatit was n'ot'her Job to wake the Grievor. She , , , , testified 'that she' 'dìd' not know'if she could. have tried harder to wake the Grievor. , , She,a~reed that th~ ,on.;.~ån:,p~rs'on h~d ,aske~ ,her if she had ~haken' the 'Grievor. Ms.,' p'revost reiterated. that it was not,her.job ~ò touch another employee. , , ' , Ms. Prevost testifi~d that'it-Wa~ he'r' opinion:~hat.: as, a ,resu,lt of her InquirY, spot bhecks would be ..don,e and th~ ài':ievor would' get caught eventually'. 10' ' , .' , ~ 04/21/2005 04:50 905-257-0481 PETER HETZ PAGE 01 Ms. Prevost gave evidence that she wasn't sure if the Grievor had taken a green or a blue blanket to the love seat. It was her evidence that the Grievor always took a blanket. It was her evidence that it wasn't difficult to provide Ms. Williams with the 7 additional dates when the Grievor slept on the job I:?ecause she always slept on the job. She testified that Ms. Williams did not ask her if she had seen other employees sleeping on the job. Ms. Prevost gave evidence that of all the people that she worked with she had never seen, anyone fall asleep. She admitted that she sits in the rocking chair with her eyes closed but never fell asleep. When it was put to her that other employees had seen her sleeping, Ms. Prevost testified that she never slept on the job. In reply, Ms. Prevost gave 'evidence that she took breaks when she had time and that she eats when hungry if time permitted and that she would take breaks to smoke and would watch a movie but on her own time and would stay close to the activity. She indicated, that she did not speak to the Gríevor because it would not have made a difference because, in her opinion, the Grievor did not care. Terry Lv" Williams Ms. Williams testified that ,the Code is the policy and that there is no progressive discipline for ,an employee found sleeping and there were no previous occasions when the Employer gave a lesser penalty when that employee was caught sleeping by a manager. She also gave evidence that there was one occasion when an emp10yee' didn't lose his job and had been given a reprimand of some sort because it was, only a complaint and the employee had not been caught by a manager. II' 04/21/2005 04:50 905-257-0481 PETER HETZ PAGE 02 Ms. Williams gave evidence that she first became aware of problems at the Third Avenue home when she returned to work on November 19th, 2004. She was involved in spot checks the week after she returned, November 28th or 29th and did not catch anyone sleeping, She testified that spot checks had been done in the past. She was not aware of any situation where' management knew of employees sleeping and took no action. She testified that there had been grumblings but no written complaints with any, specifics such as a particular employee sleeping. No action was taken with regards to the grumblings because there was no proof and to catch a person you need~d a definite complaint in writing. Ms. Williams testified that sleeping on the job ,was unacceptable because double staffing was required in the event of a fire; for medical reasons due to the fact that three of the clients suffer seizures and require medication if the seizure lasts for more that 3 minutes; for the comfort of the ,cI,ients who have to be changed no less that every two hours to avoid developing rashes and sores, and for the safety of staff because of the size and weight of the clients. Ms. Williams opined that there might be some down time and staff counselors could read, watch 1V or catch lip on reports but not sleep. Ms. Williams gave evidence that the fire chief's main concern with respect to single staffing issue was that because the fire department is a volunteer department, he was concerned that it would take longer'to respond at níght as the volunteers would have 'to wake up and drive to the station, and one person could only do so much. ' She testìfied that she felt that a letter of reprimand was not enough due to the length of' time that she was sleeping arid she recommended dismissal at the 12 ~41Ll/2005 04:50 905-257-0481 PETER HETZ PAGE 03 December 1, 2004 meeting and that no conclusion was achieved because Ms. Belair wanted to speak to the other Board members. Ms. Williams testified that she attended the discharge meeting and didn't recall the Griever giving any response 'and she never apologized. Ms. Williams testified that she attended, subsequent meetings and the Grievor never apologized. In cross-examination Ms. Williams, agreed that it was possible that she did not issue any formal discipline before because discipline doesn't happen very often. Ms. Williams testified that in the summer of .2004 she had told Ms; Quirk and Nanette Leblanc that she did not want a co-worker to wake the sleeping employee and to call her. Neither ever called: her. She indicated that she would expect the co-worker to try and wake the sleeping employee if no manager was available. Ms. Williams testified that she had seen Ms. Prevost's inquiry within a day or two of November 19th but did not speak with Ms. Prevost at the time although she believed that she had spoke'n with her once between the incident and the meeting with the Board. Ms. Williams gave evidence that she did not share the inquiry with the Joint Health and Safety Committee because the inquiry first goes to the manager involved to settle the issue and that if it wa's a very important issue the Joint Health and Safety Committee would be advised as has been done in the past. Ms. Williams gave evidence that she saw Ms. Prevost's summary of the incident on the Monday after November 2th and that she read through it and may have asked Ms. Prevost some questions or clarification about when she called the on- eall person and what happened when Ms. Paquette got to the home and if it was 13 04/21/2005 04:50 905-257-0481 PETER HETZ PAGE 04 the Grievor that she had alluded to in the inquiry and that Ms. Prevost had said "yes". Ms. Williams testified that her impression of the phrase "because I couldn't wake staff up to help me" in Ms. Prevost's summary was that Ms. Prevost had tried to wake the Grievor. She did not know what or how Ms. Prevost had tried and it was her evidence that even if she hadn't tried to wake the Grievor, the discipline would have been the same b~cause the Grievor was asleep for four hours. Ms. Williams testified that she did not give a lot of thought to the fact that Ms. Prevost had indicated that she couldn't wake the Grievör. Ms. Williams testified that the summary was shared with the Board at the discipline meeting and she believed that Ms. Prevost's memo of November 30th, outlining the seven additIonal dates that the Grievor slept was shared with the Board at the discipline meeting. Ms. Williams had asked Ms. Prevost if it had happened before and asked her to put it in writing. Ms. Williams testified that she could not remember if anyone at the meeting indicated that the other incidents could not be considered. Ms. Williams opined that the other incidents were not given much concern as there was more concern about the last event. Ms. Williams confirmed that she had worked with Mr. Sauve but had never heard ' , or seen any spot checks being done in either 2001 or 2002 and that sleeping on the job was ~ot ap~ropdate and she told employees to call her but received no such calls. Edith Belair Ms. Belair recounted the events relevant to her involvement which mirrored the evidence of previous Employer witnesses. 14 04/21/2005 04:50 905-257-0481 PETER HETZ PAGE 05 Ms. Belair testified that sleeping on the job was a serious offence and anyone caught sleeping could be discharged. In her opinion, the Grievor had been sleeping far too long and the care of the clìents' was most important. Ms. Belair gave evidence that she decided not to make any decision without input from the other Board members and she telephoned them. It was her evidence that all of the Board members indicated that the Grievor should be discharged because of the seriousness of the offence. On December 2nd, 2004, Ms., Belair, Ms. Paquette and Ms. Williams met with the Grievor and two Union representatives and Ms. Belair communicated the Board's decision to discharge the Grievor be'cause of the seriousness of the situation. It was Ms. Belair's evidence that there was no response or explanation from the Grievar. The termination was fallowed up by a registered letter. Ms. Belair testified that the decision to terminate the Grievor was not influenced by her Union activity but by the seriousness of the offence at the Third Avenue home. In cross-examination Ms. Belair testified that she had never been called ,upon to discipline before and that she listened to Ms. Paquette's and Ms. Williams's interpretation of what happened and that they looked at the polícies and the issue of sleeping and discussed wh~t they thought should happen, either layoff or terminate the Grievor. It was her evidence that she called the Board members and explained that the <:)n-call person had received a call at 3:00 a.m. from a staff counselor that the Grievor was sleeping and that the staff counselor could not wake the Grievor. The on-call person said that she would get in touch with a manager and got hold of Ms. Paquette who said that she would look after it. Ms. Paquette went to the 15 04/21/2005 04:50 905-257-0481 PETER HETZ PAGE 05 Third Avenue home and found the Grievor sleeping. It was her evidence that no one on the Board had suggested the Grievor be suspended. In reply Ms. Belair clarified that by "layoff' she meant suspension. Union Evidence Pauline Stewart Ms. Stewart, the President of Union local,' a single unit local of 39 to 44 employees of which less than half are full-time, and a full-time counselor in the day program testified that s~e worked as a' residential counselor from 1996 to 20'00 and was involved in the Union "from day one". It was her evidence that the Union had been certified in the May/June 1996 time-frame and that the Union went on stríke from September 1999 to February 2000 which resulted in lIa lot of bad feelings". Ms. Stewart confirmed that when the former Executive Director had left, three Board members, includin~ Mr. Cousineau, negotiated the collective agreement. Ms. Stewart testified that she had seen the grievance reply from the Employer dated May 26th, 2004 a'nd 'confirmed that Mr. Sauve had been suspended with pay for three shifts for leaving his shift without permission. Ms. Stewart testified that the las~, infractions in Ron Sauve's Listing of Critical Issues and Events were more significant and that she had suggested to the former Executive, Director thât he look at the issues, one at a time. Ms. Stewart testified that with half the people being full-time, there was some tension within the membership bøcause of workload. It was her evidence that 16 04/21/2005 04:50 '305-257-0481 PETER HETZ PAGE 07 after the ratification of the collective agreement was a time when it was full-time versus part-time, a war because the part-time employees didn't understand what was in the collective agreement and supervisors were adding fuel t the fire. Ms. Stewart testified that there is a buzzer in the Third Avenue home but that it was more like a "chime", not a loud sound. She indicated that she hears it faintly because she has a hearing difficulty. In cross-examination Ms. Stewart agreed that the relationship since the strike was not as rocky as before and that since the strike two collective agreements have been negotiated, there have been no strikes or lockouts and no arbitrations except for the present one. Since the strike all the Board members have changed except for one member. Ms. Stewart confirmed that Mr. Sauve's grievance was May 27th, 2004 for unjust discipline and that he had been reprimanded on May 26th and that nowhere in the letter was there any reference to sleep'ing on the job. It was her understanding that the're had been an allegation that Mr. Sauve had been sleeping on the job in March 2003 but she díd not know if management caught him sleeping or if there had been a complaint and couldn't recall if Mr. Sauve had admitted sle~ping on the job. Carole Purdy The Grievor recounted, her version of events when she awoke in the presence of Ms. Paquette. It was her evidence that when she awoke she realized that Ms. Paquette was there. Ms. Paquette pulled her' aside and told her she would get a written warning and not a verbal warning and that the Grievor stated that she was really sorry. It was the ,Griever's evidence t,hat she was going to explain what 17 04/21/2005 04:50 905-257-0481 PETER HETZ PAGE 08 happened and that she was going to accept' the written warning because she , was wrong, She asked Ms. Paquette why the written warning and not the verbal warning and was told that it was because of the seriousness of the situation and that a written warning was more appropriate.' The Grievor said that she was fine with a wrítten warning. She testified that had a member of the local asked her what would happen if the member were caught sleeping, she Would have said a verbal warning based on the policies, past practice and progressive discipline because that ,is the way , , discipline woul,d be handled' and believed that the progressive discipline was , contaiJied in the collective ag'reement. It was her evidence that in her 12 years progression was al~ays used. The Grievor testified that she never felt that there was an opportunity to say that she WS:s sorrY and at the December 2nd meetipg. ' She thought that she would go into the meeting with the Union stew~rd to receive a formal written warning and when she arrived Ms. ' Belair started to talk and said that she had to dismiss her and there was no ~ore opportunity to speak. The Grievor testified that she: knew tryat she was in the wrong and would take her "lumps" and that ,is why 'she, agreed to th~ written warning instead of the verbal , warning. The Grievor stated that if she were 'ever reinstated, she would never sleep on the job again. She has two girls á'ged 8 'and 10 that depend on her and a husband who is se:asonally employed and doesn't'work from November to May and that ,during that time, she it; the ,main bread winner. Since her discharge the Grievor has submitted, at. least 10'job applications and is using a web site but has not been successful. She is rec,eiving employment insurance and has reported that she ,is actively looking for work but that'there are not a lot of jobs in Iroquois Falls , , , where she lives. 18 ~4!Ll!2005 04:50 905-257-0481 PETER HETZ PAGE 09 In cross-examination the Grifwor gave evidence that she did say that she was sorry to Ms. Paquette and that when Ms. Paquette testified that the Grievor hadn't, Ms. Paquette was wrong. The Grievor also testified that she did. not give Ms. Belair any explanation. It was put to the Grievor that "as a Vice President of the Union she believed that based on the collective agreement, policies and past practice, a verbal warning was the appropriate penalty and was é)lsked if there was any other policy, other than the Code, that she based her answer on, she testified that there was another policy that is progressive, verbal, written and the third time a suspensiön or dismissal but did not have a copy of the policy. She testified that the policy did not indicate that the Employer may take any action based on the infraction. There were degrees of discipline and she, thought that she may have been referring to the Grievance Procedure. She agreed that although she referred to past practice, there was no evidence how the Employer had dealt with sleeping on the job in the past. She also agreed that she provide~ the Union's input for single and sleep shifts and that the Union opposed it and agreed that the protocol called for two staff to change a client and that the' health and safety for single staff was an issue. She gave evidence that the sleep shift was not the same issue, as it was more about what employees would be paid and where they would sleep and she could not recall any'discussion aboÜt health and safety about sleep shifts. The Grievor agreed that Ms. Prevost had changed the clients alone without the , Grievors help in the early morning and that during her change of the clients she was not available because she was ~sleep. The Grievor testified that she would 19 04/21/2005 04:50 905-257-0481 PETER HETZ PAGE 10 not have left Ms. Prevost as a single staff had Ms. Prevost woken her. The Grievor indicated that according to the evidence of Ms. Prevost, Ms. Prevost didn't try to wake the Grievor. SUBMISSIONS OF THE PARTIES EmDlover The Employer relied on the following cases in support of its submission: Re Mine, Mill and, Smelter workers, Local 598 and Falconbridge Nickel Mines Lid. (1956) 7 LAC. (4th) 130 (Little); Re International Association of Machinists, Airline Lodge 714 and Trans.Canada Pipelines (1964) 14 LAC. 424 (Thomas); Re National Grocers Company Límited and Retail¡ Wholesale & Department Store Union¡ Local 414 (1975) 10 LAC. (2d) 124 (D/Shea); Re Tousignant and Treasury Board (Solicitor-General of Canada) (1979) 26 LAC. (3d) 124 (Garant); Re The Boys Home and Canadian Union of Public Employees, Local 3501 (1996) 57 LAC. (4th) 379 (Springete); Re MacMillan Bathurst Inc. and Independent Paperworkers of Canada, Local 69' (1997) 65 LAC. (4th) 97 (Backhouse); The Employer submits that this is a simple case, complicated by distractions and that the dispute is over the degree of discipline to be imposed. It is the submission of the Employer that the Union's view is that the Grievor's sleeping on the job is a minor infractio'n with minor consequences but to the Employer it is very'serious because of the intentional nature of the act by the Grievor on the night 'in question and is ,not a 'case where the Grievor dozed off through inadvertence. 20 04/21/2005 04:50 905-257-0481 PETER HETZ PAGE 11 It is the submission of the Employer that while the Grievor was sleeping, from 1 :00 a.m. to 5:30 a.m. a co-worker was doing the chores of two people. When the co-worker had had enou9h, she called on-call for help and Ms. Paquette arrived at 5:00 a.m. and observed the Grievor asle~p on the love s'eat ~nd the Grievor continued to sleep to 5:30 a.m. The Employer submits that management and the Board reviewßd the circumstances and 'determined that the appropriate discipline was discharge, which was communicated to the Grievor. The Employer refers to Article 4.01 (b) wherein it states that the' Employer "has the exclusive right to reprimand, suspend, discharge, or otherwise discipline employees for just cause. It is the submission of the Employer that the general purpose of the Collective Agreement as found in Article 1.01 should be kept in mind when viewing the Grievors actions and that the purpose is to (c) facilitate the parties working together to encourage high quality' service to clients and mel!lbers of the Association; (d) foster a public opinion which would motivate support for optimal provision of programs and facilities for intellectually disabled individuals. The Employer submits that according ,to Ms. Prevost, at 1 :00 a.m., the Grievor grabs a blanket off the client's bed, lies on the love seat, puts her feet up and goes to sleep with no discussion with Ms. Prevost and that the Grievor was snoring louder than the TV. The Employer notes that the evidence of Ms. Prevost's was, not contradicted and that Ms. Prevost called several times to wake the Grievor and the Grievor did not wake up. Furthermore, it is argued. the Grievor did not wake up,when the door' opened and Ms. Paquette came in, the door chìmes did not wake the Grievor and she continued to sleep for 40 minutes 21 04/21/2005 04:50 905-257-0481 PETER HETZ PAGE 12 with the noise of changing all the bed sheets and the clothing of the clients in the adjoining rooms. The Employer argues that the Grievor was paid to work and she had jobs to do while she was at work. At 3:00 a.m" three or four of the clients were wet and at 5:00 a.m. all of them were soa'ked and required a complete change of clothes, ~riefs and bedding. It is the submission of the Employer that the Grievor had a complete neglect of the clients, the consequence of which are bed sores and rashes. Furthermore, it is argued, that the' Grievor is a Health and Safety representative and should know better. It is the position of the Employer that when the Grievor had her Union hat on she fought for the opposite of what she did on the November 27'h, It is submitted that the Grievor opposed single and sleep shifts because they were inappropriate and unsafe for workers and the clients, yet the Grievor put Ms. Prevost into the same position as if she was a single staff, it is submitted. The Employer submits that Ms. Prevost, Ms. Paquette and Ms. Belair all testified that the Grievor did not apologize and that there was no evidence of remorsefulness to the Employer. In fact, it is argued, the Grievor challenged Ms. Paquette on the fact of a written reprimand and was not accepting that what she did was wrong. The Employer submits that the Code indicates that 'the discipline for sleeping is discharge and that there is no evid~nce of past practice regarding steeping. The Employer further submits that Mr. Sauve's matter relates to a different situation and cannot be relied on as a past practice bacause the facts are different ,in the Grievor's case. Simply because there is not a lot of discipline, it is argued, does , , not mean that the Employer cannot act. The Employer submits that there were no facts to have warranted dismissal in the past, no evidence that the Board 22 04/21/2005 04:50 905-257-0481 PETER HETZ PAGE 13 acted with any bad intentions. The Employer submits that the Board had to make a decision and it did. The Employer submits that in Re Mine, Mills and Smelter, supra, the griever, a conveyor sampler, slept for}) hour. His job was to turn the conveyor on and off and the grievor had been previously warned. There was a phone call to turn the conveyor off. The grievor hadn't answered after the 4th ring. The supervisor shook him and woke him up and he was terminated for cause. The Board reviewed the work of the grievor who worked with machinery. and the case at hand, it is submitted, deals with people and their health and safety and the Grievor slept for longer that % hour. ' The Employer submits that in Re National Grocers, supra, a warehouse employee was s8,en coming out of the bond room, looking sleepy but was never caught sleeping. There was an intentional nature of the act, making a bed out of freezer coats. In the present case, it is submitted, the Grievor never attempted to hide because the Grievor's supervisor wasn't walking the floor. The Employer submits that in Re Tousignant, supra, sleeping in a penitentiary is not the same as sleeping in an office. The penalty in the case was a very harsh penalty. ' Here it is a home for the' disabled, human lives and the health 'and safety for the clients and co-workers is at stake and as well, here the Grievor lost her job and it is harsh on her, it is submitted. ' The Employer, submits that in Re Boy's Home, supra, discipline was found to be excessive. Sleeping was an inadvertence and the grievor was asleep for 5 minutes in an out of ,the, way place and a co-worker reported the grievor. She called the griever's name and she woke up. It was a momentary inadvertence, the grievor did not, intend to sleep. The gri~vance was upheld and the grievor was given a 4-week suspension. It is submitted that the reasoning is distinguishable in the case' at hand because the Grievor was intentionally slept 23 04/21/2005 04:50 905-257-0481 PETER HETZ PAGE 14 In the alternative, The Employer referred to Re Macmillan, supra, where the griever was reinstated but with no back pay, one year's salary, and was placed on a two year probation. In Re International Machinists, supra, the grievor was reinstated with no 'back pay, a period of 7 months. UNION SUBMISSION The Union relied on the following cases in support of its submission: Re Zehrs Markets, a Division of ZehfflTiart Lid and Retail Clerk's Union, Local 1977 (1986) 23 LA. C. (3d) 124 (Weathen'll;, Re Network North, The Community Mental Health Group and Ontario Public SerVice Employees' Union, Local 666 (1993) 32 C.LAS. 178 (Charney); Re Treasury Board (Solicitor General Canada - Correctional Service) and Dunn (1989) 13, C.LAS 45 (Chodos); Buchanan Memorial Sunset Lodge and Hospital Employees' Union, Local180 (1991) 23 C.LAS. 99 (Bluman); Re Toronto Electric ,Commissioners and Canadian Union of Public Employees, Local 1 (1992) 26 C.LAS. 287 (Beattie); Alberta, and The Alberta Union of Public Employees (1993) 32 CoLAS. 560 (McFetridge); Treasury Board (Transport Canada)' and Lefebvre (1995) 41 C.LAS. 210 (Galipeau); Re Canadian Airlines International Ltd. and International Association of Machinists and Aerospace Workers (1996) 43 C.LAS. 457 (Ready); Re Air Canada and International Association of Machinists and Aerospace Workers (1991) 240 C.LAS. 507' (Plcher): Re Woods Homes and Canadian Union of Public Employees, Local 38 (1998) 51 C.LAS. 297 (Elliott); Re Surrey Association for the Mentally Handicapped and British Columbia Government Employees' Union (2000) 60 C.LA. S. 82 (Lanyon); Re Superior-Greenstone , , District School Board and Ontario Secondary School Teachers' Federation (2000) 60 C.LAS. 188 {Swan; Re North Bay and District Association for Community Living and, Ontario Public Service Employees' Union (2004) Unreported (Roberls), 'and Mandak Metal Processors Limited and United Steelworkers of America, Local 8670 (1996) 44 C.LAS. 15 (McGregor). 24 U~IL~/,~~~ ~q:~~ 905-257-0481 PETER HETZ PAGE 15 The Union submits that sleeping on the shift is not condoned by the Union and some discipline is merited. However, The Union argues, the Employer reacted with the harshest punishment possible. That level goes against the tenet of progressive disciplíne and would only apply if the offence was "over the top" and , the working relationship unacceptable. The discipline is outrageous and cannot stand and the Grievor, who is the number two official in the Union was imposed a higher level of discipline which is discriminatory. The Union cites as examples, Re Treasury Board, supra, where an air traffic controllar in Montreal who was all alone fell asleep and was fined one day's pay. The controller was not credible but had no previous discipline and his job involved a real health and safety concern. In Re Alberta, supra, where the grievor had a similar job and was caught sleeping and was given a 1':day suspension even though he was found to be lying lying. The grievance was dismissed. In Re Buchanan, supra, the grievor was a care aide, analogous to Grievor's position as a staff couns'elor and had been warned one day before about sleeping on the job. He was given a written reprimand. In Re Woods Hom$s, supra, the grievor had been previously caught sleeping, and had been given a verbal warning for the previous offence and a written warning for the subsequent one. The Grievor denied sleeping and the arbitrator found 'that she lied and she was given a lengthy suspension for the third offence , In Re Treasury Board and Dunn, supra, the, grievor, a correctional officer ;n a maximum security prison, was found sleeping. He had been assessed a $500 penalty, which the arbitrator reduced to $300. The grievor denied sleeping. 25 04/21/2005 04:50 905-257-0481 PETER HETZ PAGE 16 In Re Toronto Electric, supra. there were five infractions in the letter of discipline, one of which was ~Ieeping. The grievor had been given two previous warnings. The grievor was neither credible nor remorseful and the grievance was dismissed. In Re Air Canada, supra, a mechanic was found sleeping. There was no previous discipline and he was given a letter, The grievance was upheld. In Re North Bay, supra, the dismissal was reversed' and involved three instances of psychological abuse of clients. The grievor'initially denied the abuse and tried to minimize the issue. The Employer argued no reinstatement because the grievor could re-offend. A 30~day suspension was substituted and the grievor was reimbursed 1 year's pay. In Re Canadian Airlines, supra, it was the 4th time that the grievor was caught sleeping and the termination was, upheld. The Union submits that the Employer did not have accurate information when it discharged the Grievor because it relied on: Ms. Prevost's written reports and there, was no investigation or interview with the Grievor. Furthermore, it is submitted, the Employer's decision is biased because Mr. Cousineau who has a son in the home was included in the decision and Ms. Prevost's letter outlining the 7 other days that the Grievor had slept was included to set the discipline and was not proven. The Union takes the position that the Employer was going through a crisis in upper management, which also contributed to the mishandling , of the discipline. The Union submits that the Code is a unilateral code of conduct and it states that "infraCtions may result in d'ismissal". Nevertheless, it is submitted, even if it said that "infractions shall result in dismissal" the matter would still be grieved 26 04/21/2005 04:50 905-257-0481 PETER HETZ PAGE 17 because a lesser penalty can be imposed. The Union submits that all of the infractions in the Code state that they could lead to discipline. The Union submits that Ms. Prevost was out to get the Grievor and she was blunt that she was sick with what was going on and didn't feel that it was her job to wake the Grievor. The Union submits that Ms. Prevost said that she tried to wake the Grievor by calling her name in a normal voice from a distance of 15 feet and did so twice over a 4-hour period. This is not a real and genuine attempt to wake the Grievor, it is argued, and, goes' to the credibility of Ms. Prevost, who, had taken the time to research the penalty for sleeping. The Union submits that Ms., Prevost was motivated by the fact that the Grievor would be disciplined and might be' fired and that she did not go close to the Grievor, did not throw a pillow, did not raise her voice and she did not follow the advice of the on-call person to shake the Grievor. The Union argues that Ms. Prevost is not believable. Furthermore, it is submitted, if there was a thought the health and safety of the clients was at risk, Ms. Prevost was at fault to let it go on. The Union submits that Ms. Prevost's evidence was contrary to that of Ms. Paquette because Ms. Prevost testified that the Grievor took the blanket off the client's bed, went to the couch and slept and when Ms. Paquette arrives she doesn't see a blanket. The Union submits that there was no blanket and Ms. Prevost's evidence was intended to make it more serious and all of Ms. Prevost's evidence should be discounted because she overstated her evidence. The Union argues that allowing Mr. Counsineau to participate in the decision is a conflict of interest and taints the whole process. Furthermore, it is asserted that since Ms. Williams admitted requesting and using Ms. Prevost's evidence of the Grievor's previous infractions, which is contrary to the finding in Re National North, supra, where the past rðcord was not part 'of the final case, the entire 27 04/21/2005 04:50 905-257-0481 PETER HETZ PAGE 18 discipline process ìs flawed, the discipline should be set aside and replaced with what the Grievor initially felt was fair. The Union takes the position that the Employer was out to get the Grievor from the outset because Ms. Paquette received Ms. Prevost's health and safety inquiry, looked at 'schedule to see who was working with Ms. Prevost but didn't send the inquiry to the Joint Health and Safety Committee because she had reason to keep things quiet. The Union argues that both managers heard regular complaints of sleeping on the job and there was no action taken when the allegations were first made. The Union submits that the issue was not discussed at meeting, no memos were sent and the complainers were not ordered to write down the events. Furthermore, it is the position of the Union that the Employer did nothing even when Mr. Sauve had slept on the job. The Union submits that Ms. Prevost puts in a complaint in November and knows of sleeping and is not a5ked about it because it is not a big health and safety issue. Furthermore, it is submitted, Ms. Williams did the least because six months befote the incident Ms. Quirt and Ms. Leblanc complained and were told to call her to catch the sleeper and they never called. " It is the position of the Union that there were no spot checks with Mr. Sauvé, but because the Vìce President of the Uníon local's name comes up, spot checks occur. The Union submits that Ms.' Paquette made no attempt to wake the Grievor, didn't prod her because she says that she was too busy and had no time to do that. The Union takes the position that letting the Grievor sleep puts the health and safety. of the clients, at risk and that there are two people on shift and both are responsible. Furthermore, it is the position of the Union that management's goal was to catch the sleeper and management was derelict in, its duty because Ms. Prevost testjfi~d that health ancj safety was serious. 28 ,,'> " 04/21/2005 04:50 905-257-0481 PETER HETZ PAGE 19 The Union in conclusion submits that Mr. Sauve was given a 3-day suspension with pay and not a dismissal and that the Initial statement by Ms. Paquette was that the Grievor would get a written report, that is what she intended to say, and a written report is not a dismissal and the Grievor did not take it as a dismissal but as a written warning. The Union submits that the Grievor showed remorse because she said from the get go that she should be punished and that is genuine. It is the 'position of the Union thåt the Grievor is a long service employee with no'transgressi,ons 'On her record and there is no evidence that the offence was premeditated. In reply the Employer submits that 8 of 12 cases relied on by the Union are not applicable and that it appears 'that the Union position is to deflect blame because it is everyone else's faulUhat the Grievor fell asleep. The Employer takes the position that Ms. Prevost is the first to get the Grievor and there is no such evidence because she tried to wake the Grievor and it was' no one else's responsibility but the Grievor's to stay awake. The Employer submits that management is the next target because Ms. Paquette conducted spot checks and Ms. Williams took no steps to deal with the verbal complaìnts, when in fact she told employees that it was not permissible to sleep on the job and to call her at home but she received no such calls. The Employer argues that spot checks were done in the past and until Ms. Prevost called the on-call person for help, management was not aware of any specific names and Ms. Paquette went to the home to support the clients. The Board it is submitted, is ~he final target because it Was out to get the Grievor. The Employer takes the position that two collective agreements were negotiated in a fairly congenial way since the strike and there have been no arbitrations 29 04/21/2005 04:50 905-257-0481 PETER HETZ PAGE 20 except for the case at hand. Furthermore it is stated, all of the Board has changed since the strike except for Mr. Cousineau and there is no evidence that he led the charge to get the Grievor. The Employer takes the position that the meeting with Ms. Belair and Mr. Cousineau was a mini meeting with the Board and it took the whole Board to confirm the discipline. Furthermore, it is submitted, there was no evidence that Ms. Belair saw Ms. Prevost's memo outlining the additional seven days that the grievor slept on the job before making a decision. As well, it is submitted that Ms. Williams never considered the memo as a formal discipline record. In summation, the Employer 'takes the position that the Grievor's sleeping Was premeditated and that since the Grievor slept on the job for more than 4% hours and work wasn't getting done because she slept, she should be held accountable and the termination should stand. Decision The question before me is whether or not the imposed discipline is just in a/l of the circumstances. If it ís, then the discharge stands. However, if is not. the issue to be addressed is whether or not I should exercise my discretion to substitute the Employer's discipline with a lesser form of discipline in this case. The role is not to second guess the Employer's decision but to make certain that the discipline is just and reas,?nable in the circumstances. Article 8.04 of the Collective Agreement confers authority for an arbitrator to resolve a dìscharge grievance by: (a) confirming the management's action in dismissing or suspending the employee; or 30 , --, --~~ U-'..JU ':!tJ~-:¿:J(-EJ481 PETER HETZ PAGE 21 (b) reinstating the employee with full, partial or no compensation for tíme lost, benefits, and with or without seniority or selVice credits: or any other arrangements which is just and equitable in the circumstances. (c) The Union argued that there was a conspiracy against the Grievor and that she was discriminated against because she was a Union official. That which the Union asserts, the Union must prove', and on the balance of probabilities, the Union's proof falls short of establishing such a conspiracy or discrimination. The Union in its submission argued that Ms. Prevost was out to get the Grievor because she had researched the,penalty for sleeping before she sentthe inquiry, was very blunt in her summary of events that she was sick with what was going on, did not make a reasonable attempt to wake the Grievor and that her evidence was overstated to make the situation seem more serious.. It is clear that Ms. Prevost subrnitt~d the inquiry and did not mention the Grievor, although she easily could have done so. However, it is not unusual, especially in a Union setting, for an employee not to name a co-worker in a complaint It is clear from her evidence that she was fed up with the Grievor's sleeping and the fact that she was doing the lion's share of the work. as noted in her inquiry where she stated, 'When I work with a 'certain staff I might as well consider myself alone to do the checks, changes and her chores". Ms. Prevost was very straightfolWard in her evidence that she expected spot checks would be conducted and that the Grievor would be found sleeping and possibly discharged. This is an employee who has simply had enough. Ms. Prevost testified that she called Grievor's name twice, in a normal voice from a distance of approximately 15 feet and received no response. It is within 31 04/21/2005 04:50 905-257-0481 PETER HETZ PAGE 22 the realm of possibility, and I would say probability, to wake someone from that distance using one's normal voice depending on how deeply the person slept. We know that the Grievor did not ~ake up. We also ,know that the Grievor did not wake up when, Ms. Paquette arrived and the buzzer sounded. Whether it was a buzzer as Ms. Paquette testified, or a chime as Ms. Stewart testified, or a beep as Ms. Prevost testified, the evidence is that it goes off when someone enters from any of the three doors and the Grievor who was sleeping on a couch beside the door through which Ms. Paquette entered, did not wake up. When Ms. Prevost was asked in cross-examination if she could have done more to wake the Grievor" she indicåted that's~e did not know. The reality is that she most certainly could have done more. However, it is not Ms. Provost's responsibility to wake the Grievor. It is the Grievor's, responsibility to stay awake during her shift and to do her share of the work. Ms. Provost's evidence on the night in question was that the Grievor, at 1 :00 a.m. took a blanket off the bed of B, client 'and went over to the love seat and went to sle'ep. Ms. Paquette testified that when she looked through the window she saw , , " , the Grievor asleep. ,She mad~ no mention of a b,lanket. That does not mean that the blanket was not there,' but simply that Ms. Paquette did not mention a blanket. It is also,quite possible that the Grievor had not taken a blanket and that Ms. Prevost was mi~taketi because the Grievor normally took a blanket when she slèpt, which was her evidence~ Similarly, the Union argued that Ms. Paquette was out to get the Grievor because when she received the inquiry, sh'e, checked'~he schedule to see with whom Ms. Prevost was working and discovered tha~ sh~ had been working with the Grievor two nights before the ,inquiry: The fact that Ms. Paquette checked the schedule would be a normal course of action:for a manager to, take in líght of the fact that a complaint was made by an employee alleging that a nameless co-worker was 32 04/21/2005 04:50 905-257-0481 PETER HETZ PAGE 23 sleeping on the job. It would make sense to 'try and determine with whom the employee had worked. The Union also argued that Ms. Paquette did not send the inquiry to the Joint Health and Safety Committee"because she had reason ,not to. I will deal with this issue later in my award. The Union, in its submission briefly referred to Section 7:4400 of Brown and Beatty, Canadian Labour Arbitration. Third Editíon which lists a number of factors that arbitrators' consider to, determine if the Employer's penalty should be mitigated. Those factors are as follows: 1. 2. 3. 4. 5. 6. 7. e. 9. The previous good re<?ord of the grievor. The long, service ofthe grievor. Whether or not the offence was an isolated incident in the employment history of the grievor. Provocation. Whether the offence was commítted on the spur of the moment as a result of a momentary aberration due to strong em'otional impulses, or whether the offence was premeditated. Whether the penalty imposed has created a special economic ,hardship for the grievor in light of her particular circumstances. Evidence, that the Employer's rules of conduct, either unwritten or posted, have not been uniformly enforced, thus constituting ,a form of discrimination. Circumstances negating ¡'ntent. The seriousness of the offence in terms of the Employer policy and obligations. 33 04/21/2005 04:50 905-257-0481 PETER HETZ PAGE 24 10. Any other circumstances which the board should properly take into consideration, such as the failure of the grievor to apologize. I apply those factors as that pertain to the Grievor as follows: The previous good record of the qrievor. There is no disciplinary record and the only evidence of performance was the evaluation that the Grievor received in May 2002 which rated her performance positively. The lena service of the grievor. The Grievor has 12 years of service with the Employer. Whether or not the offence was an isolated incident in the employment history of the Qrievor- The Grievor was not previously disciplined for sleeping on the job. Whether the offence was committed on the spur of the moment as a result of a momentary abeffation due to strena emotional impulses. or whether the offence was premeditated. The evidence of Ms. Prevost was that the Grievor grabbed a green blanket an~ went to have a seat, lay back and went to sleep without saying a word to Ms. Prevost. As mentioned earlier, Ms. Paquette did not mention a.blanket in her evidence. , Whether the penaltv imposed has created 8 $oecial economic hardshiv for the anevor in light of her particular circumstances. The evidence is that since her dismissal, the Grievor has been ünable to find employment and has been collecting EI. She has two young daughters and her husband is seasonally employed from May to October. From October to M~y,' the Grievor was the main breadwinner in the family. 34 ~4!¿1!L005 04:50 905-257-0481 PETER HETZ PAGE 25 Evidence that the £molover's rules of conduct. either unwritten or vosted, have not been uniformly enforced. thus constituting 8 form of discrimination. There is no evidence of any other employee being caught by management while sleeping and being discharged. ,However, Mr. Sauvé appears to have been spoken to with regards to sleeping on the night shift on March 7, 2003 as it appears in the lìst of Critical Issues and Events. It also appears that he was disciplined on May 26th, 2004 for leaving the property during the shift on April 28th, thus leaving one staff on the floor and also for leaving a shift on May' 9th before the second staff person arrived to replace him. There was no evidence that he had been caught sleeping by a manager, or if someone had complained about him to management. Similarly, there had been a complaint about Mr. Vetman and he was spoken to but was riot dj~ciplined because he had not been caught sleeping by a manager The seriousness of the offence in terms of the Emplover f)olicV and obligations. According to the Employer, sleeping on the job is a serious matter especially at the Third Avenue home where the 5 of the six clients cannot walk and three' experience seizures regularly. Double staffing was continued in the face' of a request from the Ministry to reduce staffing. Double staffing was maintained for the safety of both clients and staff and the Grievor was not supportive of single staffing, as were others. Any other circumstances which the board should properly take into consideration. such as the failure of the arievor to 'apologize. 35 ~4/~1/¿005 04:50 905-257-0481 PETER HETZ PAGE 25 Ms. Paquette testified that the Grievor did not apologize or explain why she had been sleeping when she was confronted on the morning of the ,incident and did not apologize at subsequent meetings. Ms. Williams also testified that the Grievor' never apologized, Ms. Belair testified that there 'was no response or explanation from the Griveor when she was terminated. It is quite likely that the Grievor was shocked because she was expecting the written warning. Although the Grievor testified that she had apologized to'Ms.'Paquette, I prefer the evidence of Ms. Paquette. The Union argued that an apology was inherent in the Grievor's acceptance of the written warning. With all due respect, I do not agree. It appears that the' balance tilts in favour of the Grievor and that the' penalty should. be mitigated'. Furthermore, the Code clearly states that , , Employees are not to s,le~p during working time, including night shifts', Infractions may result in dismissal. , My emphasis added. It would appear that the language contemplates situations where sleeping on the job may not result in dismissal. Ms. Paquette in her evidence indicated that the Grievor's sleeping was serious because of how long she slept. Would the Grievor have suffered, the same fate had she' slept for 5 minutes? Perhaps not. , , However, the matter d,o~s 'not end here. 'Managemen~ must accept some responsibility for the manner in which 'it dealt. with the verbal complaints. I do not , , disbelieve for one minute; ,that the health and safety ,of the clients and the staff are paramount to the Employer,' The EmplÓyer could have, and should have. done more about the verbal complaints and 'grumblings than simply remind the 36 ~qILLI¿~~~ ~4:b~ 905-257-0481 PETER HET2 PAGE 27 complainers that sleeping on the job is not permitted or ask employees to write it down or call the managers. They could have convinced complainers to identify the culprits on the basis that the safety of the clients and/or the staff could be compromised. They could have held a meeting, ,sent out ,a msmo, or involved the Joint Health ,and Safety Committee. Ms Williams testified that she did not forward the inquiry to the Joint Health and Safety Committee because it first' goes to the manager to deal with. She further testified that. she would send it 'if it was a serious matter. It has , , already been established that this was a serious matter to the' EmpJoyer. Waiting for someone to come foliNard does' not in the ,interim do anything to enhance the safety of the clients or the staff. The evidence" of the Ms. Paquette and Ms. Williams was to the effect. that no 'action was taken when there were verbal coni'plaints from an employee about an a co-worker sleeping because it would be the word 'of the employee against the word of the co-worker. Nevertheless, faced with a complaint that could have serious safety implications, it. wo'uld be wiser to approach the co-worker with the , , , complaint. Chances are' ~hat if the, cO-workAr had been sleeping, he/she may have ~econd thoughts abo~t doing so again. There is one, final matter. The Unidnargued that the decision of the Board was tainte~ 'because, the, Board had relied on Ms. Provost's memo outlining that the Grievor had slept on 7 different occasions. Although Ms. Prevost testìfied that those, days represented days, wh~n the Grievor had slept on the job, the Grievor had never been disciplined or spoken to about it. It was the evidence of the Employer that uniess it cal,Jght the employee, it could not discipline the employee because, it would be the erT!Ploye~'s word against the co-worker. Yet, that is , precisely contrary to what w~s done in this case. Management accepted as fact that the Grievor had slept 'on seven previous occasions without having caught her doing so. ,The memo was brought to the meeting on December 1 st and 37 04/21/2005 04:50 '305-257-0481 PETER HETZ PAGE 28 should not have been referenced. The Employer argued that that there was no evidence that the Board relied on the memo., However, the fact that the memo was reviewed by'Ms Williams who attended and participated in the meeting and was of the opinion that the Grievor should be discharged. casts a shadow. I have reviewed all of the cases with respect to the various penalties arbitrators , " , , have either uphel,d or mitig'ated and I am mindful of the responsibilities that the Employer has to its clients.. What the Griever has done is certainly unacceptable with respect not only to the clients that depend on her but also to her co-worker who expects her do her share of the work. However, I am also cognizant that the Grievor is a long service employee with no previous discipline. Having regard to 8,11 of the. forego,ing, ,the discharge is replaced with all unpaid suspension of 8 weeks. I' s,hall remain seized in the event that there are any difficulties implementing this award. . , t day of April, 2005. " , , ,; 38 ,.',..,. .', : ',' :..::', ',' -