Canadian Labour Reporter

August 20, 2018

Canadian Labour Reporter is the trusted source of information for labour relations professionals. Published weekly, it features news, details on collective agreements and arbitration summaries to help you stay on top of the changing landscape.

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8 Canadian HR Reporter, a Thomson Reuters business 2018 August 20, 2018 ARBITRATION AWARDS I'll tell you what you do with the magazine, you roll it up and take it back where you fucking found it, now you fucking got that?" said Travis. (It was Teck policy not to leave magazines inside company ve- hicles and Travis falsely believed Armstrong complained to man- agement about him leaving a magazine inside company equip- ment.) The interaction was witnessed by other members of the road crew and Rob Slapak, foreman, who intervened and told Travis to head to the showers. Travis' face was "beet red" dur- ing the interaction, testified Arm- strong, who later wrote a letter to the general manager requesting "the bullying and harassment to stop." The second incident took place on May 28. Colin Pinotti, another member of the road crew, was walking through the parking lot to hand in his timecard. Travis approached him and said, "What are you going to do when (your supervisor) dies and you don't have a cock to suck?" The following day, Travis phoned Pinotti and apologized for his comments. Creighton Glober, human re- source advisor, began an inves- tigation into the two incidents. During questioning, he found that Travis "downplayed the incident," was not "honest and forthcoming" and "did not take accountability." During another interview with management, Travis called his be- haviour and manner of speaking "locker-room talk" that goes on all the time within the road crew. On June 5, the company termi- nated Travis. "Guy, you are currently on a final letter for treatment of em- ployees and the company is satis- fied that you breached the code of conduct and treatment of em- ployee policy to the point where the employment relationship is no longer viable. Your previous work history combined with these re- cent incidents have given us cause to terminate your employment ef- fective immediately," said the let- ter of dismissal. The union, United Steelwork- ers (USW), Local 9346, grieved the firing. Arbitrator Stan Lanyon dis- missed the grievance. "I conclude that (Travis) ha- rassed and bullied Armstrong on May 16. He did it in front of Arm- strong's entire road crew in order to intimidate him and to show him up as a squealer in front of his fel- low employees. Armstrong felt bullied, belittled, harassed and scared." "Although (Travis) denied that he had been verbally abusive to- wards Armstrong in the past, I accept Armstrong's evidence that (Travis) has verbally made digs towards him over the years," said Lanyon. Travis's discipline record at work — which included three counselling letters, two discipline notes, and two final letters — was referenced by the arbitrator as a determining factor. "(Travis) is a long-service em- ployee: 24 years as of the date of his termination. However, his em- ployment record is not free of dis- cipline," said Lanyon. "I have decided that (Travis) cannot return to this workplace. There is no viable employment re- lationship that remains with this employer," said Lanyon. "He has had two final letters of discipline. It is not appropriate to issue a third. (Travis) fully under- stands that he has been given sev- eral, and 'rare' chances to change his behaviour. He has failed to do so." Reference: Teck Coal and United Steelworkers, Local 9346. Stan Lanyon — arbitrator. David McDonald for the employ- er. Colin Gusikowski for the employee. June 20, 2018. 2018 CarswellBC 1777 Discipline record included two final letters: Arbitrator < 'Verbally abusive' pg. 1 move was because the Dufferin location was more secure than Metro Hall, which contained open public spaces throughout the building. But on Dec. 19, 2014, she was ordered to be moved away from the Dufferin location after a fight with a coworker, because A.B. was adjudged to be more at fault. On Feb. 2, 2015, A.B. made a re- quest to remain at the Dufferin lo- cation as it was closer to her son's daycare centre. (A.B.'s son had multiple anaphylactic allergies, and she wanted to be close enough to respond to any emergencies, she testified.) The city denied the request and unilaterally moved her to another location that was one kilome- tre away from the Dufferin spot, which would still allow her to deal with her son's medical issues. But before the transfer was scheduled, A.B. went off work due to illness. A.B. also made another request to her employer: That she be al- lowed to remain at the Dufferin location due to her medical condi- tion. "(A.B.) is diagnosed with post- traumatic stress disorder result- ing from a past traumatic experi- ence that has been reawakened by the incident at work. Specifically, she feels safe and protected at her current work location as it is not a public space; however, the em- ployer's insistence to move her to North York Civic Centre (NYCC) has significantly exacerbated her anxiety as NYCC is an open pub- lic space which is less secure and the assailant, who knows her, may freely enter," said a letter written by Dr. Eyal Bodenstein on April 30. After her sick leave and vaca- tion benefits ran out, A.B. made a claim for LTD benefits with Manulife, the employer's benefits provider. To support her claim, two other doctors submitted reports that detailed how A.B.'s condi- tion would be worsened if she was forced to leave the Dufferin loca- tion. But on Jan. 11, 2016, Manulife turned down her claim for LTD benefits. After an appeal, the claim was again denied by Manu- life. A.B. returned to work at the Dufferin location on Sept. 17. The union, the Canadian Union of Public Employees (CUPE), Lo- cal 79, grieved the decision and argued A.B. was "totally disabled" during the period between April 29, and Oct. 28, 2015, and she was entitled to the benefit. However, arbitrator Christine Schmidt disagreed and dismissed the grievance. "I am unable to accept that Dr. Bender's and Dr. Bodenstein's re- ports are, as the union submits, consistent in that they find that the grievor was 'totally disabled.' Both Dr. Bodenstein, a psycholo- gist, and Dr. Bender, a psychia- trist, produced reports whose focus was primarily directed at the grievor's request for a work- place accommodation, which is a distinctly different issue from the assessment of total disability that I must make having regard to the language of the plan." The arbitrator also found fault with how the union presented its evidence to establish "total dis- ability." "Dr. Bender's report suggests that the grievor should not be transferred to another location without first undergoing the therapy sessions referred to in his report. That, in my view, cannot be interpreted as a declaration of total disability. At best, what Dr. Bender is saying is that further treatment is required before A.B. resumes her regular duties in a new environment," said Schmidt. And what Dr. Taylor wanted, when he suggested A.B. stay at Dufferin, was "the only reasonable accommodation of A.B.'s condi- tion. However, that is a different issue from the question of total disability," said Schmidt. Reference: The City of Toronto and Canadian Union of Public Employees, Local 79. Christine Schmidt — arbitrator. Sharmila Clarke for the employer. Doug Wray for the employee. Aug. 1, 2018. 2018 CarswellOnt 12550 < LTD benefits pg. 1

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