While the parties have the right to negotiate limits, which an arbitrator may consider in assessing discipline, any Sunset clause must be analyzed, ArbitratorGlass held what he excludes from the analysis. In the case before him, the arbitrator considered that the ”disciplinary history” should be excluded outside the time limit, but he was not prevented from taking into account the ”work or employment record” of the bereavement. In this case, the previous error survived the Sunset clause because it spoke with the ”global working paper” of grief and… The commitment as an employee” and the question of whether he can learn from his mistakes. Although this was an incident for which grief was disciplined, the impact of this previous incident was not limited to discipline. Since history cannot be altered by collective agreements, workers in subsequent disciplinary hot water are expected to offer mitigating explanations of the model that is emerging. In other words, instead of ignoring the past or assuming that no one knows it, the employee can be told to raise it as part of his explanation of what is happening now. In a recent case of B.C.-Fall, Mission Hill Winery v. Service Employees International Union Local 2, Branch 300 (Crozier Grievance),  B.C.C.A.A.A.A. No. 130 (Glass), arbitrator Nicholas Glass confirmed the dismissal of an employee who made a major mistake – not once, but twice – despite the existence of a sunset clause prohibiting disciplinary action. Whereas, in this case, the language was narrow enough to allow the arbitrator to resort to the prior fault, an employer who accepts a broad sunset clause language runs the risk of having to maintain the employment of an employee who makes catastrophic errors with significant consequences, provided there has been sufficient time between these errors. As a result, the adjudicator was not able to strictly consider the ”disciplinary history” of the bereavement, but was able to explore the ability of the bereavement to recognize the seriousness of his fault through negligence and to respond to requests for improvement and the general health of the working relationship.
If the parties intended to exclude such considerations, this would have been expressly stated in the Sunset clause. The arbitrator found that this was ”legal fiction” but necessary. In Jebamoney, Vice President Abramsky found that Weir was aware of previous complaints about Jebamoney, including two complaints of excessive use of force, which have now been excluded from his file.