Canadian Labour Reporter

September 10, 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 September 10, 2018 ARBITRATION AWARDS week of his vacation allocation be- ing added to the time off, which would run from Oct. 10 to 16. Johal was advised he could return to work the week of Oct. 4 to 9. When Johal continued to re- quest Sept. 11 as the beginning of his vacation, Francisco refused and said the decision was also sup- ported by Brian Bell, operations manager. Upon hearing this, Johal yelled at Francisco, and berated Bell, ac- cording to Francisco, saying: "He is going to regret this for the rest of his life, he will remember me for this. He is training you to be like him and treat me this way. This is just another way for you guys to screw me up." Francisco told Johal he could request another leave for the week of Oct. 4, but Johal simply said, "I know what I can do, you don't need to tell me," and he hung up the phone, testified Francisco. At 4:07 p.m., Johal sent an email to Francisco and again asked for the time off to begin on Sept. 11. "Now you are forcing me to take vacation from Sept. 5 to Oct. 3, 2017. Then come back to work for 3 days (Oct. 4 to 6) and then go on my approved fifth week vacation," wrote Johal. Francisco reiterated the board's position in a return email to Johal. After he advised management about the contents of the original phone call, an investigative meet- ing was held on Sept. 14. "As far as the threat-making, nothing happened, it is all news to me," said Johal during the meet- ing, and he added, "To me it seems like make-up, I don't know wheth- er Gilbert made it up." On Oct. 11, Johal was given a 10-day suspension. The Interna- tional Union of Operating Engi- neers (IUOE), Local 963, grieved and argued that because Johal had no previous discipline on his 40-year record, the penalty was excessive. The grievance also requested the employer pay Jo- hal for overtime he would have earned had he worked the 10 days. Arbitrator Vincent Ready agreed and upheld the grievance and ordered a three-day suspen- sion instead. "While I have also considered the grievor's denial and lack of re- morse to be an aggravating factor, any inclusive and reasoned bal- ancing of applicable factors and circumstances results in a conclu- sion that the discipline imposed was excessive." "Looking at the context and entirety of the conversation, it concerned a vacation reschedul- ing request and proceeded along expected conversational lines, until the grievor raises, and reacts inappropriately to, the perceived involvement of Brian Bell in the denial," said Ready. "The tenor and tone of the con- versation seems to be on some- thing of a bell curve, starting and ending innocuously enough, with a flare-up in the middle," said Ready. However, the arbitrator dis- missed the claim for overtime. "The union's overtime claim is based on LOU #1 which states that it is the building engineer's responsibility to provide someone to perform necessary overtime. Union counsel contends further that the building engineer's au- thority over and entitlement to overtime is unaffected by suspen- sion (actual or pending investiga- tion), vacation, or scheduled days off," said Ready. "I do not agree with that assess- ment." Reference: Board of School Trustees of School District No. 39 (Vancouver) and International Union of Operating En- gineers, Local 963. Vincent Ready — arbitrator. Peter Csiszar for the employer. Richard Edgar for the employee. July 19, 2018. 2018 CarswellBC 2055 required of him. This discipline is a final warning that any further in- cidents of misconduct of any form or failure to comply with direct or procedural instruction, will abso- lutely result in termination," read the documentation regarding his suspension. Jannack had four other instanc- es of disciplinary action on his re- cord. He was suspended after he repeatedly avoided completing VTAs, or talking to management, during March, despite being asked by manaement on numer- ous occasions. Jannack did not sign the disci- plinary documentation. Jannack returned to Invista af- ter the suspension, but he took time off due to injury shortly thereafter. An RTW was prepared on June 2, and it was signed by Jannack. However, minor changes were made and another one was pre- pared on June 5. But on June 18, after Jannack returned to work, Graham Emery, supervisor, and another supervi- sor went to Jannack's workstation to get him to sign the RTW. Jannack was "standoffish" when approached, testified Emery, and he walked away without signing the form. On June 21, another supervi- sor and an HR representative met with Jannack and asked him to sign another updated RTW form, but Jannack again refused to sign the document. Jannack was "seemingly not engaged" and stared out the win- dow. A final meeting was arranged between Jannock and Ken Howe, supervisor, and Shelley Deyo, HR, on June 30. They explained that they were to get him to sign "before he gets terminated," said Howe. Jannack refused and walked out of the meeting. The front gate re- cord showed he entered the site at 7:19 a.m. and left the same gate at 8:24 a.m. Jannack was terminated on July 11 via letter: "You were given clear direction in your last discipline letter, indicating that you were being given a final warning and that any further incidents of mis- conduct of any form or failure to comply with direct or procedural instruction, would result in termi- nation of employment." The union, Kingston Inde- pendent Nylon Workers Union, grieved and argued that because there were only minor differences in the second and third RTWs, it was unfair to ask Jannack to sign them. As well, Jannack wasn't told that failure to sign was subject to ter- mination. Arbitrator Derek Rogers dis- agreed and dismissed the griev- ance. "(Jannack) had a repeated his- tory of challenging the employer in various ways from refusing to adhere to simple safety rules such as keeping his arms cov- ered through to engaging with six members of management in three unproductive sessions aimed at convincing him to cooperate to the extent of reviewing and in- scribing RTW agreements that were updated and modestly re- vised versions of one that he had signed without any reported diffi- culty days earlier," said Rogers. The union's suggestion that the supervisors should have warned him was dismissed by the arbitra- tor. "An employer must not be put in the position of having to threat- en termination in order to obtain the cooperation of an employee, yet that is the effect of the union's submission based on the observa- tion that none of the managerial employees told Jannack that he could or would be subjected to discipline or discharge if he failed to cooperate," said Rogers. "When he was asked on three occasions to sign a revised RTW agreement, Jannack could not pretend that he did not under- stand that the signature was a matter of some importance to the employer," said Rogers. Reference: Invista Canada and Kingston Independent Nylon Workers Union. Derek Rogers — arbitrator. Robert Little for the employer. Ernie Schirru for the employee. Aug. 24, 2018. 'Repeated history challenging the employer': Arbitrator

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