Last chance agreement must be respected: Arbitrator

Employee should made a better effort to correct behaviour when on LCA, arbitrator says
|Canadian Employment Law Today|Last Updated: 05/14/2014

An Ontario arbitrator has upheld the termination of an employee under a last chance agreement under which the employee had been previously reinstated.

Early in 2014, Bombardier Aerospace, the Canadian-based international aircraft manufacturing company, terminated the employment of one of its Ontario workers. The union filed a grievance and, on Feb. 4, an agreement was reached in which the worker was reinstated with a lengthy suspension. The reinstatement also included terms and conditions that amounted to a last chance agreement.

Under the agreement, the worker was required to remain free of any discipline and comply “with all employer rules, regulations, policies and practices” during the period the last chance agreement was in effect. In addition, he also had to comply with Bombardier’s attendance management policy by providing “satisfactory reasons” and documentation to back up any late arrivals or early departures from work.

Bombardier stipulated — and the union and the worker agreed — that the last chance agreement would be the worker’s “last and final opportunity to redeem himself as an employee of the company following a lengthy discipline history which has included prior termination for breach of company rules and policies.” It was made clear that if the worker breached any of the agreement’s terms it would be grounds for termination. The agreement also stated any arbitration following a dismissal would be “limited solely to the determination as to whether any of the conditions” of the agreement were breached.

The worker returned to work on Feb. 10, 2014. Two days later, he was five minutes late returning to his work station after lunch. A meeting was held in which Bombardier indicated it could have triggered the terms of the last chance agreement, but it decided not to do so in the hopes it would serve as a reminder to the worker of the “precarious situation” he was in. The union joined Bombardier in stressing to the worker how important it was for him to comply with the last chance agreement if he wanted to remain employed. The worker thanked Bombardier for giving him another chance.

On Feb. 18, the worker was on an evening shift that was fairly new to him. A buzzer sounded at 11 p.m. and he assumed his shift was over, though he had worked the same shift the previous week and left at the correct time, which was 11:30 p.m. On his way home, he realized his mistake but didn’t tell anyone about it except the lead hand on the shift.

Bombardier later discovered that the worker had left early and called a meeting with the worker and the union. After some discussion, the worker’s employment was terminated effective Feb. 26 for breaching the last chance agreement. The union grieved the dismissal.

The union pointed out other employees were given some leniency with respect to early departures and the worker was subject to different rules. However, the arbitrator found the worker was in a different position than other employees because of his past misconduct, which put him under the terms of the last chance agreement without the same leniency.

The arbitrator found since the worker was under the specific terms of the agreement and knew of his position, he should have been more careful as to when he left work. Since the worker breached his agreement, there was no other option but to terminate the worker’s employment.

“The (last chance agreement) must be respected by employees and arbitrators. Employers would have no incentive to enter into such agreements if it were otherwise,” said the arbitrator. “Such agreements are, in my view, important tools available to the parties to preserve the employment of employees in circumstances where termination of employment would otherwise be inevitable.”

The arbitrator found the worker “made almost no effort to comply” with the last chance agreement and therefore Bombardier had just cause to dismiss him. See Bombardier Aerospace and UNIFOR, Local 112 (Baker), Re, 2014 CarswellOnt 3152 (Ont. Arb.).