Charlotte Johnson was hired 9 years ago by the Department of Public Works (DPW) for the City of Glacemouth, Nova Scotia. Charlotte is a Street Sweeper Operator for DPW and currently makes $23.80 an hour. She works 40 hours a week and while her schedule may vary depending on DPW requirements, Charlotte typically works from 10:00 pm to 6:00 am beginning Sunday evening and ending Friday morning. Charlotte is 31 years of age, is married and has a 4 year old daughter and a 2 year old son. Charlotte's partner works part-time (about 15 hours a week) as a cashier at a local grocery store. Charlotte and all of the other DPW employees are are represented by the National Union of Public Employees (NUPE). The relationship between DPW and NUPE is somewhat adversarial in nature, particularly during the pandemic. There are labour shortages on occasion and thus considerable pressure on employees to work overtime. DPW is looking into implementing a performance management system but NUPE is strongly opposed because of a lack of trust in DPW supervisors. Charlotte is considered to be an "average employee". Although she is popular with her co-workers, Charlotte and her supervisor have had some issues relating to the quality of Charlotte's work and her unwillingness to work overtime.

The DPW has a detailed policy manual for Street Sweeper Operators, training and information sessions are provided on a regular basis, and drivers are required to have the policy manual with them at all times (either a hard copy or on their phone). Street Sweeper Operators must be able to operate specialized vehicles such as street sweepers and snow plows, and in addition to the required provincial license, operators must pass a DPW Operator Permit test each year. The collective agreement provides that Street Sweeper Operators are entitled to three 15-minute breaks during an 8 hour shift as well as a 30 minute meal break.

Charlotte has one previous disciplinary offence on her record. Just under two years ago, she received a 3-day suspension for falling asleep at work. The evidence revealed that Charlotte was completing her scheduled route but just after 4:00 am, she realized that she was very tired. Rather than contact her supervisor, Charlotte parked her Street Sweeper in the parking lot of a small mall. Although she had planned to have a short nap, she fell asleep and was awakened at 7:15 am. by her supervisor - when Charlotte didn't arrive back at the DPW garage at 6:00 am, her supervisor tracked her down using the GPS tracking system. Charlotte apologized for sleeping at work and said that she had not been able to sleep well before her 10:00 pm shift began because her two children were loud and kept her awake. The DPW and NUPE agreed on a 3 day suspension.

The present arbitration case arises out of a series of incidents that started in July of 2022. On July 3, Charlotte's supervisor received a call from the DPW call centre; a local resident had called the centre to report that a Street Sweeper vehicle (assigned to Charlotte) had been idling for almost 3 hours from 11:05 pm in front of the resident's home and the driver appeared to be sleeping. Charlotte's supervisor called Charlotte's cell phone at 2:20 am and Charlotte said that she was just taking her break and that her work was going well.

As a result of this incident, the DPW Manager of Quality Control decided to look into Charlotte's behaviour at work on 4 different dates - July10 and 12 and July18 and 20. Charlotte was unaware that this was being done. The results of the investigation revealed that Charlotte was asleep in her truck with the truck idling for 3 hours and 22 minutes on July 10, 1 hour and 55 minutes on July 12, 4 hours and 31 minutes on July 18 and 3 hours and 44 minutes on July 20. The total time idling for the 4 days was 13 hours and 32 minutes. Note that all of these dates were when Charlotte was working the 10:00 pm to 6:00 am shift. The findings were confirmed by GPS data obtained from the GPS tracking system. Using the GPS data for idling periods of at least 45 minutes for the months of April, May and June, the Manager of Quality Control calculated that Charlotte's Street Sweeper showed a total idling time of 156.4 hours. The cost of fuel for this period was approximately $1,120 and wages paid while Charlotte was not working amounted to $3,722.

On July 24, 2022, Charlotte and her union representative were called into a meeting with her supervisor, the Manager of Quality Control and the Director of Industrial Relations. Charlotte was presented with the evidence and said she was very sorry and admitted taking naps during work because of stress and fatigue associated with her job, family responsibilities (2 young children), and the pandemic. Charlotte also stated that she had informed her supervisor in early May that she was having a difficult time sleeping and was often feeling fatigued during her shift. Her supervisor said it was okay to take a short rest while working but to keep him informed of how Charlotte was feeling. However, Charlotte never updated her supervisor concerning her health issues.

After considering all of the evidence and completing its investigation, the DPW decided to terminate Charlotte Johnson for just cause. The collective agreement gives DPW the right to discipline and terminate an employee for "just cause". The union is grieving the dismissal.

 

Outline the arguments for both the employer  and union . Act as an arbitrator  and render a decision (with reasons). As you are aware, options in a unionized environment can range from:

1. No penalty

2. Verbal Warning

3. Written Warning

4. Suspension (if you believe a suspension is the appropriate remedy, you must indicate the length of the suspension in days / weeks / months)

5. Dismissal

Answer rating: 100% (QA)

Arguments for the Employer Repeated Violations Charlotte has a history of falling asleep at work resulting in a previous 3day suspension The current incidents of sleeping on the job show a pattern of ... View the full answer