Canadian Labour Reporter

December 9, 2019

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 HAB Press business 2019 December 9, 2019 ARBITRATION AWARDS to record their hours worked. Violating the policy would make employees "subject to discipline including possible termination of employment." On Aug. 8, 2017, the store man- ager arrived in the morning and saw one of the night crew getting ready to leave. However, the store wasn't faced or ready to open. The employee told him the crew had been busy that night and hadn't had a chance to face the store. The manager looked at video from surveillance cameras and calculated that Cooper took an extra 96 minutes of paid breaks than was allowed and the employ- ee to whom he had spoken took an extra 109 minutes — employees were only entitled under the col- lective agreement to two 15-min- ute paid breaks and one 30-min- ute unpaid break. Cooper acknowledged he was responsible for the time the night crew took for breaks. When asked about the breaks he took on Aug. 8, he said the janitors were work- ing on the floors, so the crew got out of their way. He also said he had arrived at 9:15 p.m. but didn't punch in until 10:30 p.m. The manager said working "off the clock" was prohibited by the collective agreement, to which Cooper responded that he was on modified duties — his ability to climb, lift, push, pull, and reach overhead was limited — and he wasn't able to get all his work done. However, Safeway had hired an extra worker to help and the entire night crew didn't have to get off the floor and go to the break room while the floor was waxed — the entire store wasn't done all at once. Afterwards, the manager sus- pended Cooper pending an inves- tigation and viewed video footage from the previous week. He found that Cooper took extra breaks ev- ery night he worked, ranging from 28 minutes to 117 minutes longer than his break entitlement. The company completed the investi- gation and dismissed Cooper for violating the honesty and integ- rity policy and the recording time policy. The union filed a grievance claiming the termination was un- fair and unjust. The arbitrator found the extra breaks Cooper took on paid time was contrary to the collective agreement and constituted seri- ous misconduct. "It is clear that taking excessive breaks and not doing productive work during work hours is viewed as a serious breach of the trust that is fundamental to the employment relationship," said the arbitrator, noting that Cooper worked in a position of trust and leadership. The arbitrator also found no evidence that Cooper's modified duties required him to take extra breaks — only certain physical activities were limited for which Safeway hired another employee. However, the arbitrator noted that Safeway resorted directly to dismissal. Though Cooper's mis- conduct was serious, it didn't reach a level that warranted skipping lesser discipline — particularly since Cooper had 38 years of ser- vice and had built up "a significant amount of 'trust equity,'" said the arbitrator in ordering Safeway to reinstate Cooper with a 30-day suspension replacing his dismissal. Reference: UFCW, Local 401 and Sobeys West (Cooper). Dev A. Chankasingh — arbitrator. Damon Bailey for employer. John Carpenter for employee. Sept. 26, 2019. 2019 CarswellAlta 2073 had a level more than twice that of the cut-off level from the oral swab test, but a urine test came back negative. In February 2013, CP conducted an investigation. During the interviews, the worker was told that he had tested posi- tive for cocaine in the oral swab, but not the urine test. The worker admitted that he had taken co- caine while on vacation, but the test results indicated that he had been exposed to the drug within a few hours prior to the derailment. On Feb. 13, CP terminated the worker's employment "for con- duct unbecoming an employee for your engaging in the use of an illegal and prohibited substance (cocaine) as evidenced by your positive substance test" — violat- ing CP policy and Canadian Rail Operating Rules. Nearly three months after his termination, on May 8, the worker emailed CP and said that his doc- tor had diagnosed him with a co- caine dependency. He attached a consultation request from a Walmart clinic for a psychiatric consultation for an opioid de- pendence. He explained that at the time of the investigation, he thought his drug use was social, which was why he hadn't raised his dependency then. The union filed grievance arguing that the worker suffered from a disability and CP failed to accommodate him. An arbitrator ordered CP to reinstate the worker subject to random testing. CP eventually agreed to reinstate the worker to a non-safety-sensitive position but appealed the arbitration decision. Two courts quashed the arbi- tration decision and ordered the case to be heard by a different ar- bitrator. When the higher court confirmed the decision in March 2017, CP removed the worker from his reinstatement pending the new arbitration. The arbitrator found there wasn't sufficient medical evidence to show the worker had a cocaine dependence. The worker initially acknowledged he had used cocaine during his vacation, but that didn't constitute evidence of an addiction. The worker didn't indicate he had a dependency issue until months after his termination, but the evidence he provided at that time referred specifically to an opioid problem — and cocaine isn't an opioid, said the arbitrator. The arbitrator noted that the worker attended an addiction rehabilitation program after his dismissal, "but that in and of itself does not prove he had a disability" without actual medical evidence of an addiction. Without such evidence of a disability, there was no duty to accommodate, said the arbitrator. The arbitrator found that the test results after the derailment clearly indicated the worker had taken cocaine within a short pe- riod of time before he operated the train. Though the tester report mentioned "metabolites," this was later amended to just cocaine and it was made clear to the worker that he had tested positive for re- cent cocaine use. This, of course, was serious misconduct, said the arbitrator, noting that it was also against the Criminal Code to op- erate a motor vehicle or railway equipment with more than a cer- tain level of alcohol or drugs in the bloodstream — a concentration exceeded in the worker's post-de- railment test. The arbitrator also found that the worker denied that test's find- ings and had a number of demerit points on his record from past discipline. This "lack of candour" combined with the seriousness of the misconduct provided just cause for dismissal, said the arbi- trator. Reference: Teamsters Canada Rail Conference and Canadian Pacific Railway. Graham Clarke — arbitrator. Maryse Tremblay, Nizam Hasham for employer. Ken Stuebing for employer. Sept. 22, 2019. 2019 CarswellNat 5073 Positive drug test serious enough for dismissal: arbitrator < Addiction pg. 1 < Breaks pg. 1 Safeway should have tried progressive discipline: arbitrator After 38 years, worker had built up "significant amount of 'trust equity.'"

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