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Improper Discharge?

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Turkeytop
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Improper Discharge?

Post by Turkeytop » Fri May 07, 2021 8:27 pm

Grievor - Male, age 38

Job Title - Machine Operator

Rate of Pay - $19.50/hr

Seniority - 5 Years

Discipline Record - Poor. Several incidents of lateness, absenteeism and showing up to work under the influence of alcohol

Nature of Grievance - Improper discharge

Remedy sought - Reinstatement with full recovery of lost wages.


The Company employs 60 people at its plant in a small town in central Ontario, where they manufacture parts for heavy equipment.

One afternoon, the employee returned thirty minutes late from his lunch break. When the foreman approached him he observed the employee walking with an unsteady gait. His speech was slurred and the foreman smelled booze on his breath.

He directed the employee to leave the plant immediately and to report to him in his office, at the beginning of the following day's shift.

Three months prior to this incident, the employee had been suspended for one week for being drunk on the job. At that time, the Company had warned him that, the next time it happened he would be fired.

The next morning, the employee attended the foreman's office along with his shop steward. Prior to the meeting, the shop steward advised the guy to neither admit to nor dispute any of the foreman's allegations, during the meeting. Also in the foreman's office was the plant manager. The foreman reviewed his observations from the previous day and the warning he had given the employee just three months ago. He advised the employee he was being terminated immediately.

Before leaving the plant, the employee signed a grievance. Does the grievance succeed?


Please, sir, if Your Lordship does not mind, would Your Lordship move himself up upon me a little higher? You are crushing my chest and I am finding difficulty in breathing.

The Duchess of Marlborough.

km1125
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Re: Improper Discharge?

Post by km1125 » Sat May 08, 2021 9:26 am

Need some more information... isn't it 'normal' for folks over there to drink while they're working?

j/k

Grievance should not succeed.

If they did take him back, there should be no 'lost wages' returned. I'm sure somebody else had to fill the role he should have been doing, and they EARNED the money that he was too drunk to accept.



Realist
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Re: Improper Discharge?

Post by Realist » Sat May 08, 2021 12:42 pm

First off, another manager should have been present with the foreman. It would give more credence to this.

Secondly, why not get a PBT test? Take him to a medical facility for a urine test? Does he have a medical condition?

Guess I’m looking at it as a former Union Rep who would attack their case, in part, on this



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Turkeytop
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Re: Improper Discharge?

Post by Turkeytop » Sat May 08, 2021 2:30 pm

In any labour arbitration case involving discipline or discharge, the burden of proof is on the employer. They must show that the employee was guilty of the alleged offense.

The standard of proof is much lower than in criminal law. It isn't guilt beyond a reasonable doubt. The standard is based on the balance of probability. If the guy looked like he was drunk, walked like he was drunk, talked like he was drunk and smelled like he was drunk, then he probably was drunk.

Employers in Canada cannot compel an employee or job applicant to submit to drug or alcohol testing

Once the employer establishes guilt, the arbitrator will then inquire as to whether the level of discipline imposed was appropriate for the offense.


Please, sir, if Your Lordship does not mind, would Your Lordship move himself up upon me a little higher? You are crushing my chest and I am finding difficulty in breathing.

The Duchess of Marlborough.

km1125
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Re: Improper Discharge?

Post by km1125 » Sat May 08, 2021 6:08 pm

If there were any safety implications whatsoever (as there typically would be with a machine operator), then I think being under the influence - even slightly - would have significant penalties, up to and including discharge.



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Turkeytop
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Re: Improper Discharge?

Post by Turkeytop » Sat May 08, 2021 7:51 pm

The hearing was scheduled for 10:00 AM on a Friday morning. The town was about a three hour drive from my home, so I drove up the night before and checked in at the same hotel where the hearing was to be held.

The grievor and I arrived at the meeting room about ten minutes before ten the next morning. The Arbitrator was already seated, at the head table, organizing his desk.

Across the table from us was the plant manager. No one else. Usually, the management is represented by a lawyer flanked by advisors and witnesses for the Company.

At ten, no one else had arrived and the Arbitrator asked both parties if we were ready to begin. We both indicated that we were.. As the Company has the burden of proof, the manager led off with his opening statement He reviewed the grievor's past record and discipline then described the final incident that has resulted in his discharge.

The Arbitrator asked if he would be presenting evidence in support of his case. The manager took from his file two 3 page documents ad handed one to the arbitrator and one to me. It was the reports written up by the foreman on the day of the incident and at the meeting where the employee was discharged.

The Arbitrator asked me if I had any objection to admitting the document as evidence. Of course, I objected. Documentary evidence is admissible only if the author of the document is there to give testimony with respect to the document and to be available for cross examination by the Union.

The Arbitrator did not admit the document into evidence. He asked the manager if the foreman would be attending the hearing. The manager indicated he would not. He had asked the foreman to be there and had expected him to be there, but he hadn't shown up. They had fired him a week before the hearing. The Arbitrator advised him he should have had his witness subpoenaed. The guy was clueless.

The Arbitrator then advised the manager that he would consider a request to adjourn the hearing til a later date when he could secure the attendance of his witness. Right away the manager requested an adjournment.

The Arbitrator turned to me and asked if I had any objection to an adjournment. I objected vehemently, saying I had come here completely prepared and the Company should have too. I had driven three hours to get there and the Arbitrator probably drove four or five hours. He came down from Ottawa.

In the end, the Arbitrator denied the request for an adjournment.

He asked me if the Union would be presenting any evidence. I indicated we would not. There was no need to present any evidence. The Company had failed completely to make its case. End of day.

The Arbitrator said he would send out his decision in writing within two weeks. The hearing ended about twenty minutes after it began.


Please, sir, if Your Lordship does not mind, would Your Lordship move himself up upon me a little higher? You are crushing my chest and I am finding difficulty in breathing.

The Duchess of Marlborough.

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TC Talks
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Re: Improper Discharge?

Post by TC Talks » Sun May 09, 2021 4:50 am

The company buys the guy out to not return.


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Turkeytop
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Re: Improper Discharge?

Post by Turkeytop » Sun May 09, 2021 1:54 pm

We got the Arbitrator's decision on a Friday. He ordered the Company to reinstate the grievor forthwith and to delete any reference to the incident from his record. He further ordered the Company to make the grievor whole for any and all monetary damages.

The Company contacted the grievor and told him to report in for his shift on Monday morning. They advised him that his lost wages (about six weeks) would be deposited into his bank on the next pay day.

I was going to be away from my office all day Monday, but I made a note to call the Company on Tuesday, to see if we could work together to get the employee into some kind of a program for his drinking problem.


Please, sir, if Your Lordship does not mind, would Your Lordship move himself up upon me a little higher? You are crushing my chest and I am finding difficulty in breathing.

The Duchess of Marlborough.

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Rate This
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Re: Improper Discharge?

Post by Rate This » Tue May 11, 2021 6:30 am

Turkeytop wrote:
Sun May 09, 2021 1:54 pm
We got the Arbitrator's decision on a Friday. He ordered the Company to reinstate the grievor forthwith and to delete any reference to the incident from his record. He further ordered the Company to make the grievor whole for any and all monetary damages.

The Company contacted the grievor and told him to report in for his shift on Monday morning. They advised him that his lost wages (about six weeks) would be deposited into his bank on the next pay day.

I was going to be away from my office all day Monday, but I made a note to call the Company on Tuesday, to see if we could work together to get the employee into some kind of a program for his drinking problem.
That’s absolutely absurd. If I was a company negotiating a contract I would make one of the conditions that alcohol use on the job be immediate termination and non-grieveable. Too bad, especially in a job that could potentially kill somebody. I don’t think I could properly represent such a person. Some shady shit right there and it’s based on stuff like that, that unions have gotten a bad reputation in this country. The immediate argument against them is getting shitty people reinstated when such action is utterly insane.



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Turkeytop
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Re: Improper Discharge?

Post by Turkeytop » Tue May 11, 2021 9:24 am

Rate This wrote:
Tue May 11, 2021 6:30 am

That’s absolutely absurd. If I was a company negotiating a contract I would make one of the conditions that alcohol use on the job be immediate termination and non-grieveable. Too bad, especially in a job that could potentially kill somebody. I don’t think I could properly represent such a person. Some shady shit right there and it’s based on stuff like that, that unions have gotten a bad reputation in this country. The immediate argument against them is getting shitty people reinstated when such action is utterly insane.
Every Company has the right to discipline or fire an employee for showing up at work drunk. They don't need the rule written into the collective agreement.

Even if it had been written into the agreement they still would have lost this case. I went to the hearing feeling certain I would loose.

The Company lost, not because of something the Union did, but because of what they failed to do. They put forward zero evidence to support their allegations against the employee.

The Arbitrator had no choice but to allow the grievance and reinstate the employee.


Please, sir, if Your Lordship does not mind, would Your Lordship move himself up upon me a little higher? You are crushing my chest and I am finding difficulty in breathing.

The Duchess of Marlborough.

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Rate This
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Re: Improper Discharge?

Post by Rate This » Tue May 11, 2021 10:20 am

Turkeytop wrote:
Tue May 11, 2021 9:24 am
Rate This wrote:
Tue May 11, 2021 6:30 am

That’s absolutely absurd. If I was a company negotiating a contract I would make one of the conditions that alcohol use on the job be immediate termination and non-grieveable. Too bad, especially in a job that could potentially kill somebody. I don’t think I could properly represent such a person. Some shady shit right there and it’s based on stuff like that, that unions have gotten a bad reputation in this country. The immediate argument against them is getting shitty people reinstated when such action is utterly insane.
Every Company has the right to discipline or fire an employee for showing up at work drunk. They don't need the rule written into the collective agreement.

Even if it had been written into the agreement they still would have lost this case. I went to the hearing feeling certain I would loose.

The Company lost, not because of something the Union did, but because of what they failed to do. They put forward zero evidence to support their allegations against the employee.

The Arbitrator had no choice but to allow the grievance and reinstate the employee.
Score two… one for at will employment and another for mandatory testing as a condition of employment. Leave the guessing games out of it.



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Turkeytop
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Re: Improper Discharge?

Post by Turkeytop » Tue May 11, 2021 10:28 am

Rate This wrote:
Tue May 11, 2021 10:20 am
Turkeytop wrote:
Tue May 11, 2021 9:24 am
Rate This wrote:
Tue May 11, 2021 6:30 am

That’s absolutely absurd. If I was a company negotiating a contract I would make one of the conditions that alcohol use on the job be immediate termination and non-grieveable. Too bad, especially in a job that could potentially kill somebody. I don’t think I could properly represent such a person. Some shady shit right there and it’s based on stuff like that, that unions have gotten a bad reputation in this country. The immediate argument against them is getting shitty people reinstated when such action is utterly insane.
Every Company has the right to discipline or fire an employee for showing up at work drunk. They don't need the rule written into the collective agreement.

Even if it had been written into the agreement they still would have lost this case. I went to the hearing feeling certain I would loose.

The Company lost, not because of something the Union did, but because of what they failed to do. They put forward zero evidence to support their allegations against the employee.

The Arbitrator had no choice but to allow the grievance and reinstate the employee.
Score two… one for at will employment and another for mandatory testing as a condition of employment. Leave the guessing games out of it.

Even with mandatory testing, which is illegal in Ontario, the Company would still lose if they didn't have a qualified witness at the hearing to give evidence with respect to the testing.


Please, sir, if Your Lordship does not mind, would Your Lordship move himself up upon me a little higher? You are crushing my chest and I am finding difficulty in breathing.

The Duchess of Marlborough.

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Rate This
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Re: Improper Discharge?

Post by Rate This » Tue May 11, 2021 10:37 am

Turkeytop wrote:
Tue May 11, 2021 10:28 am
Rate This wrote:
Tue May 11, 2021 10:20 am
Turkeytop wrote:
Tue May 11, 2021 9:24 am
Rate This wrote:
Tue May 11, 2021 6:30 am

That’s absolutely absurd. If I was a company negotiating a contract I would make one of the conditions that alcohol use on the job be immediate termination and non-grieveable. Too bad, especially in a job that could potentially kill somebody. I don’t think I could properly represent such a person. Some shady shit right there and it’s based on stuff like that, that unions have gotten a bad reputation in this country. The immediate argument against them is getting shitty people reinstated when such action is utterly insane.
Every Company has the right to discipline or fire an employee for showing up at work drunk. They don't need the rule written into the collective agreement.

Even if it had been written into the agreement they still would have lost this case. I went to the hearing feeling certain I would loose.

The Company lost, not because of something the Union did, but because of what they failed to do. They put forward zero evidence to support their allegations against the employee.

The Arbitrator had no choice but to allow the grievance and reinstate the employee.
Score two… one for at will employment and another for mandatory testing as a condition of employment. Leave the guessing games out of it.

Even with mandatory testing, which is illegal in Ontario, the Company would still lose if they didn't have a qualified witness at the hearing to give evidence with respect to the testing.
The test speaks for itself.. does someone need to measure the diameter of his urine stream? Perhaps a taste test? There’s nothing to witness. He goes to the off site lab, pisses in a cup and if he fails he’s gone. Nothing the Union can do about it. Just like getting caught using the cell phone while driving. Gone. No if’s ands or buts.



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Turkeytop
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Re: Improper Discharge?

Post by Turkeytop » Tue May 11, 2021 10:58 am

The person who administered the test would have to attend to give evidence under oath.

My brother in law beat a speeding ticket once, because the cop who issued the ticket did not show up for court.


Please, sir, if Your Lordship does not mind, would Your Lordship move himself up upon me a little higher? You are crushing my chest and I am finding difficulty in breathing.

The Duchess of Marlborough.

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Rate This
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Re: Improper Discharge?

Post by Rate This » Tue May 11, 2021 11:07 am

Turkeytop wrote:
Tue May 11, 2021 10:58 am
The person who administered the test would have to attend to give evidence under oath.

My brother in law beat a speeding ticket once, because the cop who issued the ticket did not show up for court.
I don’t think that flies in the United States. If it does then that’s wrong. It’s not like they can fake the test somehow. And if they do it would be the employee smuggling in someone else’s urine and passing it off as his own. This is why they make you take off your jacket and empty your pockets before you go into the bathroom and pee.

What if it’s “he shoved that guy into the press!” but nobody shows up to prove it at a hearing? Should he keep his job? We all know the guy did it… should absolutely anything be defensible at one of these hearings simply because somebody else didn’t show up?



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