Canadian Labour Reporter

March 15, 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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PLTs couldn't wear masks when performing work that required safety googles, as the masks fogged up the goggles. Urgl felt the city and his co- workers weren't doing enough to prevent the spread of CO- VID-19, but he couldn't point to any specific safety violations. He displayed verbal aggression and a lack of interpersonal skills on the job and the city suspended him for three days on July 28 for insub- ordination, harassment and fail- ing to co-operate with the city's investigation. A member of Urgl's crew emailed the city saying the dis- cipline wasn't enough, as he felt Urgl represented a safety issue for the crew by contributing to low morale and mental health issues. On Aug. 31, a union shop stew- ard encountered Urgl in the city offices filling out a leave form. The steward made a joke about looking for time off already be- cause it was Monday morning, to which Urgl replied, "When I have my mind made up I follow through." The two went up to the employee changeroom, where they continued to talk. During the conversation, Urgl repeated his remark about following through and made other comments about "burning the city down," and "it's like throwing a grenade into a room." The steward felt uncomfort- able about the comments, so he warned Urgl about his language and tried to steer the conversa- tion towards another topic. An- other employee was in the shower area and overheard. This employ- ee was concerned about what Urgl was saying so he recorded the conversation on his cell- phone. The steward didn't report the conversation to management but the employee who recorded it did. Urgl initially claimed he didn't remember making any of the comments, except for the gre- nade one, although he said some of them sounded like something he would say. He explained that the grenade comment was an analogy to the fact that he felt threatened at work and he needed to defend himself. Management felt Urgl's expla- nation didn't make sense, as the conversation had not been about a workplace problem. The city concluded that Urgl made the statements, which were threat- ening in nature and showed "an animus toward your employer and potentially your coworkers that completely and utterly un- dermines the trust necessary for a viable employment relationship." The city terminated Urgl's em- ployment effective Sept. 17. The union argued that the city didn't have just cause for termi- nation as the comments weren't threats and were intended as "a private discussion about work- place issues," noting that the steward didn't feel threatened by the comments in their context. The union also argued that the termination was in part due to Urgl's conduct before his suspen- sion, for which he had already been disciplined. The arbitrator found that Urgl didn't provide an adequate expla- nation for his comments, so the city was "entitled to protect itself against all possible risks con- tained within the language" Urgl used, including "injury, death or damage or destruction to prop- erty." The arbitrator also found that Urgl didn't display any insight into the nature of his comments and his coworkers were impact- ed by his conduct and had safety concerns about working with him. In addition, Urgl wasn't dis- ciplined twice for his previous misconduct — the city consid- ered his past record for related misconduct in determining that the employment relationship was irreparably damaged, said the ar- bitrator in upholding the termi- nation. Reference: New Westminster (City) and IBEW, Local 213. Paul Love — arbitrator. Greg Heywood for employer. Andrew Buchanan for employee. Jan. 26, 2021. 2021 CarswellBC 257 third observed the process. The written lockup policy re- quired inmates to line up out- side their cells. However, this was rarely followed and Gardner claimed he had never been coun- selled or disciplined in relation to it. On the day of the assault, Gard- ner was responsible for moving the inmates into their cells while a colleague checked that they were in their proper cells. Video surveillance footage showed that Gardner was at the station desk in the unit reading a book and looking at his cellphone at the time of the assault — of- ficers weren't supposed to have cellphones or reading material in the unit. It also showed Gard- ner looking through the window of the cell where the assault took place during the inspection and later walking by when a cloth cov- ered the window. Gardner said that he didn't see any signs of a struggle in the cell — one inmate was at the window and the injured one was lying on the bed — and as- sumed things were fine since his colleague had looked already. He also said that he didn't think anything of the cloth cover- ing the cell window, as it was common practice for inmates who wanted temporary privacy to use the toilet. However, he didn't check back later, which was the standard practice. Gardner explained that his daughter had been struck by a car the previous day and he had his cellphone so he could text her and a book to distract him from the stress. He also said he left 20 minutes early because he was anxious to get home to his daugh- ter, but he acknowledged that he shouldn't have left early. The TSDC terminated Gard- ner's employment for failing to properly perform his duties. The arbitrator found that Gardner was aware of the policies against cellphones and reading. Breaching these policies, as well as leaving early and not following up on the covered window, were cause for discipline, said the arbi- trator. However, the arbitrator found that there wasn't cause for disci- pline for not following the written lockup procedure or not signing the logbook, as neither were part of common practice. "It is inappropriate for an em- ployer to discipline an employee for breach of a policy that is rou- tinely not followed, and for which other employees have not been similarly disciplined," the arbitra- tor said. The arbitrator also found that the TSDC couldn't fault Gardner for not discovering the injured inmate. He checked the cell and didn't notice anything amiss, and neither did his colleague or the next shift 30 minutes later. The arbitrator determined that Gardner distracting himself with his cellphone and a book, along with not checking on the cov- ered window and leaving early, were serious misconduct but not worthy of termination. Noting that Gardner expressed remorse and an understanding of the im- portance of following policies in the future, the arbitrator ordered the TSDC to reinstate him with a one-year suspension. Reference: OPSEU and Ontario (Ministry of the Solicitor General). Barry Stephens — arbitrator. Thomas Ayers for employer. Jane Letton for employee. Feb. 3, 2021. 2021 CarswellOnt 1412 Guard wasn't only one who didn't notice anything amiss Technician's comments taken out of context: Union

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