In Camco Corp. (2012), 215 L.A.C. (4th) 270 (Randall), the employee had been employed in a uranium conversion facility licensed under the federal Nuclear Safety and Control Act. As a Plant Guard Group Leader, it was his responsibility to maintain surveillance of the property. As part of a security audit conducted during the night shift, managers had breached the plant’s security perimeter and then proceeded undetected to the plant’s Guardhouse. There they discovered that the employee, and another guard over whom he had group leader responsibility, were asleep in circumstances that suggested that they had intended to fall asleep.
The employer’s discipline policy identified “’sleeping on the job’ as misconduct which warrants only an early step in a progressive scheme of corrective discipline.” The arbitrator found that but for ambiguity arising from the policy, the employer “would have had clear just cause for the [termination. The employee’s] falling asleep and apparent “nesting, given his duties and potential catastrophic consequences of his failure to attend diligently to them, is, on the legal standard, just cause for termination. His service [16 years], record [clear] and family circumstances [four dependent children] would not have been sufficient to mitigate the penalty.”
While the employee’s conduct was more egregious than simply falling asleep on the job, the ambiguity contained in the employer’s discipline policy led the arbitrator to conclude that the termination should not be upheld. The employee was reinstated with an eleven month unpaid suspension. The suspension, which the arbitrator fashioned to continue for two months beyond the issuance of the award, was accompanied by a demotion from the position of group leader and the imposition of a “last-chance” agreement effective for two years following the employee’s reinstatement.