Canadian Labour Reporter

April 15, 2019

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8 Canadian HR Reporter, a Thomson Reuters business 2019 April 15, 2019 ARBITRATION AWARDS incident. Pederson again denied he broke the frame but CKF re- scinded his forklift license and sent him home while it investi- gated. "This is wrong, I didn't do any- thing wrong. Last time, when I hit the conveyor, I admitted it. If I did anything wrong, I would admit it," said Pederson, according to notes taken by Travis McLean, oper- ations manager. During the meeting, Pederson became agitated and levelled ac- cusations against coworker Scott Menzies. He said that Menzies threatened: "I'm going to get you guys," on June 24. As well, Peder- son said Menzies and coworker Glen Coombs stole materials and equipment from the company to use on coworker Ken Schwarz's boat. Pederson reasserted these al- legations to HR manager Julie Raymond via text at 10 p.m. on July 1, said the employer. But Pederson claimed that he was on antidepressant medication and was drinking alcohol that day, and he didn't remember sending the text. While he was off work, Peder- son filed two complaints with WorkSafeBC that alleged the em- ployer tried to force him to per- form unsafe work and that he was "psychologically messed up. Can- not sleep, cannot eat, crying." Pederson took time off work for medical leave in August and Sep- tember. Pederson was dismissed by CKF on Oct. 5. "Your actions are a serious violation of the company's code of business ethics and consti- tute a severe breach of faith. These cumulative series of significant work-related matters have left the company with no alternative but to terminate your employment immediately," said the letter. The union, Teamsters, Local 213, grieved the firing. It argued Pederson's 12 years of senior- ity and only one incident in the past (also for damaging company property) was not enough to jus- tify termination. Arbitrator Robert Pekeles disagreed and dismissed the grievance. "I acknowledge that Peder- sen had 12 years of service with the employer, with one two-day suspension on his record. In other circumstances, this would be an important mitigating cir- cumstance. However, in all the particular circumstances of the present case as described above, I am unable to conclude that the employer's decision to dismiss Pedersen was an excessive re- sponse," said Pekeles. By not acknowledging his actions, the case was clearcut in favour of the firing, said Pekeles. "The June 23, 2017, incident was the second forklift incident that he was involved in in two years. He received a two-day suspen- sion for the 2016 incident and was retrained on the operation of the forklift. The fact that he again drove the forklift carelessly in 2017, after having been disci- plined for that same offence in 2016, and particularly his failure to take responsibility for the 2017 incident, does not give me con- fidence that further corrective discipline would work." As well, Pederson's "allega- tion of theft against Coombs and Menzies, based on nothing more than rumour, was a ser- ious employment offence. That allegation against Coombs and Menzies, along with his failure to accept responsibility for the June 23 incident, leads me to firmly conclude that the employment relationship cannot be restored with a lesser form of discipline," said Pekeles. Reference: CKF and Teamsters, Local 213. Robert Pekeles — arbitrator. Israel Chafetz for the employer. Bryan Savage for the employee Feb. 20, 2019. drank from a 750-millilitre rye whisky bottle that he brought on board as a gift for someone else. Later, a CP police constable no- ticed alcohol on Paisley's breath. The RCMP were notified and Paisley failed a breathalyzer test as his blood alcohol concentration was greater than 0.08. The police charged Paisley with impaired operation over 0.08 of railway equipment. On Aug. 21, during an investi- gation interview, Paisley admitted he drank whisky on that day. He said he experienced a breakdown from the collision and previous incidents, one of which resulted in the death of a 20-year-old person. Paisley was asked if he believed he had a problem with alcohol. "Yes, I believe that through cir- cumstances in my personal and professional life, that I have de- veloped an issue with alcohol and possibly other mental-health issues. I can assure you that this is the only time I had consumed al- cohol while on duty. The circum- stances that took place on Aug. 12 made me realize that it was a bigger problem than I had thought previously," he said. As well, he pointed to his home situation, including both Paisley and his wife battling cancer. Nonetheless, Paisley was ter- minated on Sept. 15. "Please be advised that you have been dis- missed from company service for your violation of Canadian Pacif- ic Policy OHS 4100 Alcohol and Drug Policy and your use of and possession of intoxicants while subject to duty," said the letter. The union, Teamsters Canada Rail Conference (TCRC), grieved the decision on Nov. 14 on the grounds that CP didn't accommo- date Paisley's alcohol addiction. After his firing, Paisley at- tended a two-week addiction treatment program and his doctor diagnosed him as suffering from "alcohol-use disorder, severe." On May 22, 2018, Paisley pleaded guilty and he was given a curative discharge. "I'm told that he's been struggling with alcohol since at least 2003. I understand a typical day for him would in- volve consuming at least one bot- tle of whiskey a day or one case of beer. And that often, his drinking would start with breakfast," said the court transcript. Paisley was also given a one- year prohibition from driving until May 22, 2019. Arbitrator Graham Clarke upheld the grievance and ordered CP to reinstate him, but with no back pay. "Paisley shall not return to work until such time as he is con- firmed by the company's med- ical officer to be physically fit to work, including testing for any substance-abuse issues which the company's medical officer deems appropriate. For the duration of his employment with CP, Paisley must abstain from the consump- tion of alcohol or drugs," said Clarke. "For a period of two years from the date when Paisley starts per- forming services for CP, he will be subject to random, unannounced drug and alcohol testing." CP argued that Paisley only raised the issue of his alcohol ad- diction after the incident, which meant the firing was justified. However, the arbitrator disagreed. "During the investigation, Paisley answered CP's question in the affirmative that he had an issue with alcohol. There was no evidence suggesting that every- thing Paisley subsequently went through constituted a 'ruse' de- signed to obtain protections under the CHRA (Canadian Hu- man Rights Act). The case law does not support the suggestion that prima facie discrimination can never arise if an employee only raises disability after an inci- dent," said Clarke. Reference: Canadian Pacific and Teamsters Canada Rail Conference. Graham Clarke — arbitrator. K. Stuebing for the employee. Feb. 5, 2019. 2019 CarswellNat 396 TCRC alleged CP didn't accommodate worker's addiction < Imbibed pg. 1 < Conveyor belt pg. 1 Spreading rumours 'serious employment offence': Arbitrator

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