Canadian Labour Reporter

November 23, 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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The coworker was concerned about safety, since the freezer had large steel shelves with product stacked high. He went to the store manager, who also smelled mari- juana in the freezer. The coworker was asked to provide a statement, as Co-op's employee handbook prohibited using or being under the influence of drugs or alcohol during working hours. The manager reviewed surveil- lance video that showed Hanson entering the freezer and staying for 52 seconds. She stayed near the open doorway, appearing to watch until the coworker re- turned. The manager talked to Hanson and she insisted that although she used marijuana regularly on her own time, she would never consume it at work. She said she might have passed gas because "maybe she had a brownie the day before." She maintained it wasn't her and said again that she was looking for bacon, but the store manager checked and found Hanson had not made any bacon purchase. Later that day, Hanson ap- proached the coworker and asked him why he would "say something like that" and "throw me under the bus?" She didn't offer any ex- planation on why the smell was there. The coworker made a second statement emphasizing that he had apologized to Hanson and he hadn't seen her with anything. He said the only reason he men- tioned her was because she hap- pened to be in the freezer when he first noticed the smell. However, Co-op decided to suspend Hanson for 10 shifts. At the suspension meeting, Han- son became upset and said no one suggested to her that she had shown signs of impairment at the time. She said she hadn't smelled any marijuana herself but acknowledged that she went in the freezer to text a friend on her cellphone, which was against the store's rules. The arbitration board found that Hanson didn't have a legiti- mate reason to be in the freezer and her initial explanation that she passed gas wasn't credible. Since there was no one else near- by and both the coworker and manager smelled marijuana, the "only one probable conclusion" was that Hanson had smoked marijuana in the freezer, said the board. The board also found that Hanson knew that smoking mar- ijuana at work was a serious rule violation and presented a risk to Co-op's workplace safety and reputation if customers smelled or saw it, so the suspension was appropriate. The board added that such circumstances often result in termination of employ- ment. "Principles of progressive discipline do not require an em- ployer to begin with the least significant penalty for a first of- fence where the offence is seri- ous," said the board in dismissing the grievance. "Furthermore, the employer has clearly set out in its employee handbook that intro- duction or use of inhibiting drugs in the workplace is a major rule violation warranting suspension or discipline." Reference: UFCW, Local 1400 and Saskatoon Co-operative Association. Anne Wallace — chair. Kevin Wilson for employer. Heath Smith for employee. Oct. 15, 2020. 2020 CarswellSask 510 Smoking in freezer serious enough for 10-day suspension Theft charges related to clerk's duties handling cash alleged that the town clerk and a former boyfriend stole a signifi- cant amount of money from the municipality and the court case was pending — she was to enter a plea on Sept. 17. Many residents of the community saw the story and were aware of the charges. The community government sought advice from its labour rela- tions consultant and legal experts and investigated by consulting media reports. It determined that the town clerk should be sus- pended without pay pending the results of the trial. Rigolet's AngajukKak (mayor) approached the town clerk say- ing he had received a call from the CBC. The town clerk claimed she didn't know what he was talking about and the mayor confirmed that she had been charged with "theft in your past employment." He gave her a letter stating that she was suspended without pay immediately pending the results of the court case. The town clerk told the union that a former councillor of the Rigolet community government had been charged with commit- ting a crime during a business trip and didn't face immediate conse- quences because the mayor had said that a person charged was innocent until proven guilty. She also complained that she wasn't offered union representation when the mayor suspended her. She said that "given the oppor- tunity, arrangements could have been made to allow me to still work" such as no handling of cash. The union filed a grievance claiming that the town clerk should not have been suspended — she had no previous discipline or performance issues — and the community government violated the collective agreement by not consulting the union or advis- ing the town clerk of her right to union representation when she was suspended. The arbitrator found that the collective agreement provided for an employee to have the as- sistance of a union representative on all matters of the employment relationship, but there was no ob- ligation to consult the union first. The onus was on the employee to request such assistance — the town clerk didn't make a request so the community government didn't deny that right, said the ar- bitrator. However, the collective agree- ment required the employer to advise any employee subject to discipline of their right to repre- sentation, so when the town clerk was given the suspension letter, she should have been advised as such. The community gov- ernment violated the collective agreement when it suspended her without giving her the chance for representation, said the arbitrator. As for the suspension itself, the arbitrator found that it was rea- sonable. The community govern- ment investigated the matter and confirmed the charges. The town clerk held a position of trust in handling the town's finances and the charges related directly to her position. From the community's point of view, having the clerk continue to work pending the outcome of the trial would put the "legitimate business concerns of the employer at risk including its reputation, and the safety and se- curity of its property," said the ar- bitrator, adding that there was no evidence the town clerk's duties could be reasonably performed by modifying them. The arbitrator upheld the sus- pension but ordered the parties to negotiate compensation for the violation of the town clerk's right to union representation when she was suspended. Reference: NAPE and Rigolet Inuit Community Government. Wayne Thistle — arbitrator. John Walsh for employer. Vina Gould for employee. March 22, 2019. 2019 CarswellNfld 505

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