Canadian Labour Reporter

January 18, 2021

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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LABOUR FORCE NUMBERS member of FSCC management testified that Sibbald had lied in his formal report of the incident, which fueled rumours that Sib- bald had "maliciously beaten the inmate." Sibbald said that the false testimony and rumours made him become a recluse and contributed to post-traumatic stress disorder (PTSD), depres- sion and anxiety. Sibbald believed he was medi- cally fit to return to work on Nov. 30, 2016, but the FSCC didn't allow him to return as there was disagreement over his medical status, his accommoda- tions, and positions that were available with his restrictions. The union filed a grievance seeking his return along with lost wages of "approximately $17,000." In August 2017, the FSCC pro- posed an agreement with Sibbald that would end his employment with a long-term disability (LTD) severance package but preserve his right to pursue the grievance. After two months of consider- ation, he accepted. Shortly before the grievance hearing in July 2019, the union changed the loss-of-wages claim to $35,000 and Sibbald claimed an additional $35,000 in general damages for harm to his men- tal health and credit rating. The FSCC offered to pay the origi- nal claim amount of $17,000 to resolve the grievance, but the union rejected it. At the grievance hearing, Sib- bald once again altered his dam- age claim, saying that FSCC's failure to return him to work cost him his truck, his home, various loans, past and future income, counselling sessions, tuition for re-education, and lost ben- efits and pension. He claimed $568,330.54 in damages, saying that he had advised the union he wanted $35,000 because "at that time I was not in my right mind" due to depression, lack of sleep, and he had been "desperate for a fast resolution thinking they would gladly accept such a small amount." The arbitrator noted that the FSCC's offer of $17,000 resolved the issue of back wages from the initial claim. He also found that "general damages" are not read- ily quantifiable, as they are usu- ally for things such as pain and suffering and mental distress. As a result, Sibbald's specific calculations in his damage claim didn't fall within the scope of general damages and the claim was ultimately for "mental dis- tress and punitive damages based upon Sibbald's perception of bad faith and misconduct on the part of the employer in call- ing him a 'liar' in court proceed- ings, refusing him the oppor- tunity to continue to pursue his career and alienating him from his friends and colleagues," said the arbitrator. The arbitrator also said that it had been established that puni- tive damages were restricted to "advertent wrongful acts that are so malicious and outrageous that they are deserving of punish- ment on their own" as they were considered "an extraordinary remedy." The arbitrator found that there was no evidence that de- picted the FSCC's refusal to re- turn Sibbald to work in 2016 as malicious, outrageous, harsh, or extreme. Since there was some disagreement as to Sibbald's sta- tus and what accommodations he needed, it made sense that it wasn't ready to return him to work at that time. The arbitrator also found no evidence supporting a connec- tion between Sibbald's mental health issues and the refusal to return him to work and keep him on LTD benefits. It dismissed the claim for general damages. Reference: AUPE and Alberta (Justice and Solicitor General). Lyle Kanee — arbitrator. Peggy Kemp, Shelina Mohamed-Rawji, Andrea van Velzen for employer. Larry Dawson for employee. Oct. 29, 2020. 2020 CarswellAlta 2164 she had tested positive for COV- ID-19. She said she hadn't worked on her last three scheduled days of work while waiting for the test — April 6, 7, and 8 — and Garda placed her on a leave of absence. However, while Garda in- vestigated to determine who had been in close proximity to the worker before she tested positive, it discovered that the worker had in fact reported for work on April 6 after she had been tested. When the worker returned to work on April 23, she acknowledged that she had worked that day because she hadn't felt sick and hadn't in- formed Garda that she had taken the test. She also said she hadn't been aware of the requirement to self-isolate. Garda didn't accept that the worker didn't know what was expected of her and showed her a bulletin that included the re- quirement to self-isolate while waiting for test results. The worker admitted she had seen the bulletin. Garda determined that the worker had breached its rules and public health guidelines, putting the health of her cowork- ers, other airport workers, and members of the public who trav- elled through the airport at risk when she worked while waiting for her test results. It terminated the worker's em- ployment the same day, April 23, and the union grieved the termi- nation. The arbitrator found that the worker's claim that she felt fine and didn't know that she should have self-isolated while waiting for the test results wasn't credi- ble. The worker called her doctor back after her appointment and the only reason for this would have been that she still wasn't feeling well. In addition, the doctor recom- mended that she get tested be- cause she worked at the airport. The worker should have realized this meant she should act cau- tiously because of the sensitivity of her workplace to potentially spreading the virus, said the ar- bitrator. The arbitrator also found that the worker knew of the neces- sity to self-isolate. In addition to guidelines at work, the pandemic was "the number one item in the news and the number one item being talked about generally from at least the beginning of March," making it practically impossible for the worker to be unaware of the consequences of spreading the virus if she was infected, said the arbitrator. "It is hard to believe that any- one was not aware of the expec- tations from public health in On- tario and Canada about what to do after having been tested," the arbitrator said. "But, even if the [worker] had not been so gener- ally aware, she and her coworkers had been specifically made aware of what to do by the guidelines is- sued by the employer which were brought to the attention of all em- ployees." The arbitrator determined that the worker clearly violated Gar- da's and public health guidelines and put "countless others at risk of illness or death." The grievance was dismissed. Reference: Garda Security Screening v. IAM, District 140. M. Brian Keller — arbitrator. Stephan Prabhu, Harrison Le for employer. Keith Aiken, Tayeb Lharti for employee. July 2, 2020. [2020] O.L.A.A. No. 162 Worker should have been ready to self-isolate: Arbitrator Correctional officer initially claimed $17,000 for lost wages

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