Canadian Labour Reporter

September 14, 2020

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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September 14, 2020 not discipline or dismiss an em- ployee except for just cause." On the worker's first day, the division manager sent an intro- ductory email that incorrectly stated her educational back- ground. The worker said in the presence of a few other employ- ees: "Who is this guy?" and "He's got it all wrong." A supervisor was shocked since the ABO position required tact. The worker's su- pervisor said that her comments were inappropriate as they could be taken as being negative. On July 19, 2018, the worker sent an email about late inspec- tion applications and two em- ployees who were responsible for assigning files took it as a veiled criticism. The worker's supervi- sor coached her on teamwork and relationship building, and the worker apologized to the employ- ees. Two months later, a BO con- densed some inspection files and asked the worker to put away the folders, but the worker replied: "I don't clean up anyone's mess." Her supervisor stressed the im- portance of working with her col- leagues and not taking things per- sonally. The worker apologized to the BO. Soon after, a BO received a complaint about the worker's "unprofessional and heavy- handed" manner when inspect- ing a pool. The worker had left an order to put up a fence within 24 hours and she said she didn't in- tend to cause offence but it was a safety issue. The supervisor told the worker to be professional and to "be nice when delivering bad news" to a property owner. In October, the worker investi- gated a complaint about a rental unit. The landlord indicated that he would resolve the issues short- ly, but when the worker returned for a second inspection she found that several things hadn't been addressed. The landlord consid- ered them to be minor and they ended up arguing with raised voices. The worker reported to her supervisor that the owner had started yelling at her and she had gotten upset and left. At an information meeting, the worker acknowledged that she could have handled the situation differently. Management told her that her employment may be in jeopardy and they would review the incident and their previous concerns. On Nov. 7, the municipal- ity terminated the worker's em- ployment because she had "not demonstrated the behaviours required by the employer in the performance of your duties." The union argued there wasn't just cause as required by the collective agreement. The arbitrator noted that the employer's authority to terminate a probationary em- ployee depended on appropri- ate supervision and reasonable standards. It appeared that the worker received minimal train- ing and coaching — the worker performed the pool and apart- ment inspections on her own only a few months after she started and she only received a few coaching sessions about her communication. "Neither [training or super- vision] appeared to me to be adequate or appropriate to the training of an employee perform- ing a job that the employer itself recognized was difficult," said the arbitrator. The municipality was ordered to reinstate the worker with com- pensation for loss of pay and ben- efits. Reference: NSUPE, Local 13 and Halifax (Regional Municipality). Augustus Richardson — arbitrator. Andrew Gough for employer. Nancy Elliot for employee. Aug. 10, 2020. 2020 CarswellNS 489 Training, supervision mandated by agreement Charges not strong enough for firing: Arbitrator who have criminal convictions are terminated. On Aug. 12, 2017, the worker was off duty and attended a wed- ding reception for someone with whom he played ball hockey. He drank five or six beers that eve- ning so he called a tow truck to take him and his vehicle home. As the worker was waiting for the tow truck, someone insulted him. The source was another ball hockey player who had punched the worker's father at a game six years earlier. This had caused a rift between their families. The worker replied with an in- sult of his own and they had a brief physical altercation. The worker punched the other man, who told a police officer who saw the alter- cation that the punch was unpro- voked while the worker said it was in self-defense. The worker was charged with simple assault. The next day, the worker ad- vised the regional sheriff of the in- cident. He described it as "a wres- tling event broken up by a police officer" and maintained that he didn't do anything wrong. Later that day, the victim called and pro- vided his version of events, which differed from the worker's. The worker then told the re- gional sheriff he wouldn't be pressing charges and would let the matter go if the victim did as well. His account differed from his original description of the event. In addition, the worker revealed that he had called the police offi- cer who had broken up the alter- cation on his personal cellphone to give him more information, which also concerned the regional sheriff. On Aug. 18, the DPS reassigned the worker to administrative du- ties pending an investigation. The worker was convicted on June 22, 2018 of simple assault, though the sentencing was put off. Three days later, the DPS terminated the worker's employment for "your conviction and the unprofessional behaviour in contacting the of- ficer involved, which constitutes a blatant disregard for the code of conduct, and given your position as deputy sheriff, we have con- cluded that there is a connection between the off-duty conduct and your employment." There was no mention of the conviction in the media, though some lawyers and members of the judiciary mentioned it to the regional sheriff. In October, the worker received a conditional dis- charge. The adjudicator noted that there was some public knowledge of the charge based on comments by lawyers and the judiciary, but there was no media coverage and no proof of harm to the DPS's rep- utation. The adjudicator found that the charge of simple assault and the fact it stemmed from a single punch put it low on the scale of seriousness, in addition to the fact it was a first offence. The judge demonstrated that by giving the worker a conditional discharge, said the adjudicator. The adjudicator also found that what the DPS considered a lack of transparency could be attrib- uted to the worker's perception that was influenced by alcohol — which likely caused the incident in the first place. As for the call to the police officer, there was no evidence the worker was trying to gain an advantage. Though it may have been inappropriate, there was no evidence of improper mo- tives, said the adjudicator. The adjudicator determined that termination was excessive. The DPS was ordered to reinstate the worker with a 30-day suspen- sion and compensation for any lost wages. Reference: NBUPPE and Department of Public Security. John McEvoy — adjudicator. Michelle Brun-Coughlan for employer. Sophie Landry Mockler for employee. April 20, 2020. 2020 CarswellNB 348

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