Canadian Labour Reporter

parking lot of the local Walmart, so he drove there. Miller told him that he was shopping for a print- er for work, but when asked if he had a purchasing card, he replied that he was just "checking out prices" so he could recommend one. The assistant director asked him what work he had done so far that day. Miller said he had made a repair, but he was wear- ing running shoes instead of his safety boots. The assistant direc- tor saw that the work boots in the truck were clean and not ap- propriate for the work Miller was doing that day. On March 6, the assistant di- rector checked up on Miller and saw that he hadn't started until 7:22 a.m., although his start time was supposed to be 6 a.m. The GPS indicated that Miller had gone to a coffee shop and then drove around, so the assistant director met him at a worksite at 11:30 a.m. Miller claimed he had started at 6:30 a.m., but the as- sistant director told him that his truck told a different story and sent him home with pay. CPR looked into Miller's work and found that on March 3, his truck had spent almost 56 min- utes at his residence, 11 minutes at Walmart, and additional time at Canadian Tire and Staples. After his conversation with the assistant director, Miller went back home for another 55 min- utes. He hadn't done the repair he had mentioned to the as- sistant director and hadn't re- ported the time he spent not working to his manager. He had submitted time claims for full days on both March 3 and March 6. CPR also learned that on three different occasions since late February, Miller had failed to conduct regulatory tests that he had reported as completed. Miller explained that on March 3, his girlfriend's daugh- ter was sick and he ran some errands because his girlfriend didn't want to leave her. How- ever, he hadn't mentioned that to the assistant director. He also said that he had started late on March 6 because he had spent the night attending to the sick child, and he drove around be- cause it helped clear his head. Miller also acknowledged not performing the regulatory tests, but he said for one of them where he had run out of time he had done appropriate adjustments previously to consider it safe. CPR terminated Miller's em- ployment for falsely claiming a full day's pay on March 3 and 6 and falsifying inspection records on three occasions. The union argued that dismissal was ex- cessive, as circumstances in his life were beyond his control and Miller took responsibility for his misconduct. The arbitrator found that Miller misappropriated time while knowing it was wrong. His explanations weren't sufficient to justify his actions or the fact that he didn't notify his manag- er, the arbitrator said. The arbitrator also found that falsifying inspection re- cords was serious, as "the rail- ways are a highly regulated industry with a heightened awareness and focus both on safety standards as well as com- pliance with the consequential requirements of regulatory re- porting." Miller's job had little supervision in a safety-sensi- tive environment, so it required a "burden of responsibility and trust" that he breached, said the arbitrator. The arbitrator determined that Miller demonstrated "a persistent dishonesty over a two-month period" that made it difficult to reinstate him. The grievance was dismissed. Reference: Canadian Pacific Railway and IBEW. Richard Hornung — arbitrator. Denis Ellickson for employee. Feb. 18, 2021. 2021 CarswellNat 393 was released with the condition that he have no contact with the flight officer. The worker recog- nized there could be incidental contact with her as he was sched- uled to work with her Dec. 21 to Dec. 25 and he would have to "work that out." He considered a shift trade but he didn't take any action. The worker didn't initially in- form Sunwing of the incident. However, the first officer was concerned for her safety, par- ticularly since she was scheduled to work with him and they could also run into each other in air- ports and on layovers while she was on reserve when the worker was flying. She notified Sun- wing and the airline removed the worker from service on Dec. 15 to avoid potential contact between the two. The first officer booked off the Dec. 21 to 25 trips and the worker returned to work. The worker explained that the incident was a private matter and he had planned to advise Sunwing before his scheduled Dec. 21 trip with the first officer. He con- tinued to work through Jan. 30, when he was suspended pending an investigation. Sunwing terminated the work- er's employment on March 13, 2020, for failing to disclose that he had been arrested and charged for assaulting a coworker and that he could not have contact with the other employee. The union grieved the termination. The arbitrator referred to the established test for just cause aris- ing out of off-duty conduct: • the conduct harms the em- ployer's reputation or product, • the behaviour renders the employee unable to per- form his duties satisfactorily, • the behaviour leads to other em- ployees refusing or being reluc- tant to work with the employee, • the worker is guilty of a seri- ous breach of the criminal code that renders his conduct dam- aging to the employer's repu- tation and its employees, and • the behaviour creates difficulty for the employer to effectively manage its workforce. The arbitrator found that the worker's failure to notify Sunwing or change his schedule was inap- propriate, as he was scheduled to work with the first officer (holi- day scheduling was difficult for Sunwing) and the airline had an obligation to protect the first of- ficer's health and safety — she suf- fered from stress stemming from the incident and the possibility of encountering the worker. Failing to act when he was in a position of trust and accountability was blameworthy, said the arbitrator, and wrongly put the onus on the first officer to bring the matter to Sunwing's attention. The arbitrator also found that continued employment of the worker would significantly af- fect Sunwing's reputation in the aviation industry. In addition, the worker's misconduct made him unable to perform his duties sat- isfactorily, caused one coworker to refuse to work with him, and caused significant difficulty for Sunwing to manage and sched- ule its workforce efficiently. All of this provided just cause for dis- missal, said the arbitrator. Reference: Sunwing Airlines and Unifor, Local 7378. Tom Hodges — arbitrator. Jonathan Maier for employer. Anthony Dale, Jeanine Farmer for employee. Feb. 22, 2021. 2021 CarswellNat 517 Captain was in relationship, didn't inform airline Position was safety-sensitive with little supervision

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