Canadian Labour Reporter

January 25, 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 call for help, and remain in the driver's seat. The city's policy re- quired only the use of "reasonable force" for self-defence. On April 20, 2019, an intoxicat- ed woman boarded Carpenter's bus and said she had no money but really needed a ride. Drivers were trained to tell passengers who couldn't or wouldn't pay the fare to tell them that it was fine and to pay double the next time, as a way to ensure things didn't es- calate, so Carpenter did so. How- ever, the passenger was acting irrationally and was unexpect- edly infuriated by Carpenter's re- sponse. The passenger spit in Car- penter's face and to Carpenter, appeared to be about to spit on him again, so he reached up and pulled her down with her back to him. He held her with one arm while he radioed for help with his other hand. The passenger broke free after about 30 seconds of struggling and Carpenter pushed her towards the door. The passen- ger then left the bus. Police officers, transit security, and a transit inspector soon ar- rived and Carpenter explained what had happened. The passen- ger was known to police and they ticketed her for spitting and being drunk and disorderly in a public place. The city considered Carpen- ter a victim of assault, but the next day another passenger who had been on the bus called in to complain that Carpenter had choked the disorderly passen- ger, wrapped his seat belt around her neck, and punched her in the head. The city launched an inves- tigation. Carpenter recounted his ver- sion of the incident and acknowl- edged restraining the passenger. The city viewed a surveillance video that showed he didn't wrap the seat belt around the passen- ger's neck or punch her, though his arm could be seen across her neck. The city felt the video con- firmed Carpenter's account, but it was concerned about the arm across the neck and the push to- wards the door, which it consid- ered unacceptable physical con- tact with the passenger. It decided to suspend him for three days for reacting in anger and escalating the situation. The union grieved the suspen- sion, arguing that Carpenter was acting in self-defense and he was entitled to take reasonable steps to ensure the passenger didn't spit on him again. The arbitrator found that Carpenter's version of the inci- dent was supported by the video evidence and his reason for grab- bing the passenger — because he thought she was going to spit on him again — was plausible. In addition, the reason for the city's investigation was the complaint that had been called in, which had essentially been proven to be false with the video evidence. The arbitrator also found that it was an intense moment and there was little time to act. Though grabbing the passenger escalated things into a physical altercation, spitting was a form of assault as well and Carpenter was entitled to act in self-defense if he contin- ued to feel threatened, said the arbitrator, adding that the arm on the passenger's neck wasn't intentional and was a result of the struggle. The arbitrator concluded that "the degree of force used by [Car- penter] to protect himself against a further assault to be reasonable." The city was ordered to clear the three-day suspension from Car- penter's file and compensate him for the loss of earnings during the suspension. Reference: Edmonton (City) and ATU, Local 569. James Casey — arbitrator. Adam Norget for employer. Patrick Nugent, Rohit Gill for employee. Dec. 22, 2020. 2020 CarswellAlta 2530 not have morning shifts sched- uled until his temporary position ended, and the LCBO gave him three options — transfer to a store with availability requirements in the evenings, use vacation time, or resign from one of the jobs. The worker opted to use vaca- tion time to take Tuesdays off, but he called in sick on the Mondays and Wednesdays surrounding his Tuesday vacation days in August. The LCBO hired a private inves- tigator to observe the worker on Wednesday, Aug. 22 after the worker called in sick. The investigator reported that the worker was at his city job and the LCBO asked the worker for an explanation in writing. The worker was scheduled to work from 1 p.m. to 9:30 p.m. on Friday, Aug. 31 and he asked for his shift to be moved to 5 p.m. because he needed to look after his brother. However, the pri- vate investigator observed the worker at his city job until 3 p.m. and then going to a mall before reporting for work at the LCBO. He worked until 9:30 p.m., when he said he felt sick with four hours left in his shift. The inves- tigator followed him home and observed two visitors arrive and take him to a mall shortly after midnight. The LCBO relieved the worker of duty on Sept. 6 pending an in- vestigation. At an investigation meeting, the worker refused to answer any questions. The LCBO showed him the surveillance evidence and he admitted that he used his August sick days to work at his other job. He initially denied that he had requested his shift change to work at his other job, but once again admitted it when confronted with the sur- veillance evidence. He said he really didn't feel well on Aug. 31, but once he went home and took medication, he felt better and went out. The LCBO terminated the worker's employment on Sept. 14. The union argued that the LCBO didn't use progressive discipline or take the opportunity to coach the worker. The arbitrator noted that the worker only admitted that he called in sick and requested a shift change to work at his other job when confronted with evidence. In addition, his activities after he went home sick showed that he was likely well enough to work after 9:30 p.m., said the arbitrator. The arbitrator found that the collective agreement didn't re- quire progressive discipline and dishonesty is often serious enough to justify immediate ter- mination. The worker was aware of the availability requirements of his job and his failure to acknowl- edge his misconduct breached the employment relationship with "no confidence that his con- duct would change in the future," said the arbitrator. The arbitrator upheld the dis- missal, finding that the worker was entitled to look after his best interests but not entitled "to maintain his employment when this is accomplished by lies and deceit." Reference: OPSEU and Ontario (Liquor Control Board). Ian Anderson — arbitrator. Adrienne Couto for employer. Dec. 21, 2020. 2020 CarswellOnt 19010 Failure to acknowledge just cause for firing: Arbitrator Alberta bus driver 'reasonable' in self-defense

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