Canadian Labour Reporter

August 2, 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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It was common practice for the overnight shift to leave trailers that came in at 5 a.m. or later for the next shift, but Parisian want- ed to do it because there were no dock staff on shift until noon. The other three employees on duty wanted to leave it. Parisian noticed that one of the other employees, Harb Dhari- wal, had closed two of the loading doors. Parisian asked Dhariwal, who was operating a forklift, to keep them open so that he could service the last trailer. Dhari- wal said he still had runs to do, so Parisian started to walk away. Dhariwal made a quick turn with his forklift drove close to Parisian. According to Parisian, he was surprised and said: "You have to watch yourself," as Dhariwal went by. When the operations manager arrived at 6 a.m., Dhariwal re- ported that Parisian had angrily confronted him, yelling: "You don't want to f--- with me or you'll be sorry. Stay the f--- out of my way." He added that Parisian had slapped the back of the forklift as he drove away and swore at him again. He denied spinning the forklift in an unsafe manner and claimed that Parisian deliberately approached it. Dhariwal also reported that when he was speaking with an- other employee a short time later, Parisian shouted at him: "You had better watch yourself." He pro- vided a written statement saying that Parisian had been "hostile and confrontational" before and he wouldn't want to work with him again. Purolator investigated and the third employee confirmed that Parisian had yelled at Dhariwal during the initial con- versation and again during his own conversation with Dhari- wal. Parisian denied using threaten- ing or vulgar language and said he had handled things profession- ally. He also claimed any reaction was due to Dhariwal's unsafe op- eration of the forklift. He denied making any vulgar or threatening statements. Purolator reviewed security video footage — which had no audio — and determined that Pa- risian's body language and actions were consistent with Dhariwal's report. Parisian acknowledged that he "may have been provoked to say something" because of the way Dhariwal had operated the forklift. Purolator determined that Dhariwal's claim was true and terminated Parisian's employ- ment for breaching its Workplace Relationship Policy and Work- place Violence and Harassment Prevention Policy for the second time in less than a year. The union argued that Purolator didn't have just cause. The arbitrator noted that Dhariwal's version of events was corroborated by another em- ployee and the security video. As a result, the arbitrator found that Parisian uttered the comments, which violated Purolator's poli- cies. Both Dhariwal and the other employee perceived the state- ments as threats, the arbitrator said. The arbitrator also found that Parisian's misconduct was similar to that for which he was suspended less than one year earlier. It wasn't impulsive and Parisian showed no remorse, so there was no reason to substi- tute a lesser penalty, the arbitra- tor said. "[Parisian's] action in the cur- rent climate which prioritizes the safety of the workplace and the respectful treatment of others in the workplace was serious mis- conduct," said the arbitrator in dismissing the grievance, adding that the short period of time since his previous discipline "was suffi- cient to cause the employer not to proceed with further progressive discipline but to move to termi- nation." Reference: Miscellaneous Employees Teamsters, Local 987 of Alberta and Purolator. Phyllis Smith — arbitrator. Gurjit Brar for employer. Arielle Sie-Mah for employee. June 16, 2021. 2021 CarswellAlta 1453 that was "what I used to do with women as a bachelor in my 20s when I was done with them" and the female supervisor giggled. She ignored the comment, an- swered the question, and they moved on with the rest of the in- terview without any issues. However, the manager's com- ment made Brestovanska feel un- comfortable and she believed it was derogatory to her, the female supervisor, and women in gener- al. She didn't initially report it to anyone until she learned that she didn't get the position. At that point, she filed a griev- ance alleging that LifeLabs had violated the collective agreement, the Ontario Human Rights Code, and company policies "by making comments [that] ought [to have been known] to be unwelcome during my interview... " Brestovanska explained that she didn't initially report the inci- dent because she felt that people "don't believe women" and she be- lieved that there would be reper- cussions for her. LifeLabs investigated the alle- gation and interviewed all three individuals who had been at the interview. The manager said he didn't recall asking the question, but he knew he wouldn't make a comment such as that which was alleged. He said things proceeded professionally and there were light jokes but nothing inappro- priate. The supervisor also didn't recall the exact question, but she said it was a standard interview question. She also didn't recall the manager making the comment and believed it was unlikely he would have, as it would have been unacceptable to her. LifeLabs concluded that Brestovanska's claim was un- substantiated. The union pro- ceeded to arbitration, with Brestovanska claiming that the investigation was flawed because it didn't assess "prob- ability" and "took a man's word over a woman." She said she no longer felt comfortable in the manager's presence and avoid- ed staff meetings if there was a chance he would be there. She also changed her status from part-time to casual. The arbitrator stated that the circumstances were a classic "he said/she said" conflict where credibility must be assessed. Both sides were adamant about their versions of the incident and nei- ther had a motive to lie — there was no history of animosity and they had previously gotten along, said the arbitrator. The arbitrator found that the deciding factor in determining credibility was the third person in the interview — the supervisor. The supervisor was firm in that the interview was professional and the manager didn't make the comment — it was likely that she would have remembered it and condemned it if he had, the arbi- trator said. The arbitrator also noted that there was no evidence that the manager had a history of mak- ing inappropriate comments and it was unlikely someone with his experience and position would make such a comment in an inter- view with two women. The arbitrator determined that the union failed to prove that the manager made the comment. While Brestovanska may have been upset about the conclu- sion of the company's investiga- tion, there was no evidence that it wasn't the right outcome, the arbitrator said in dismissing the grievance. Reference: LifeLabs and OPSEU, Local 389. Randi Abramsky — arbitrator. Brian O'Byrne for employer. June 14, 2021. 2021 CarswellOnt 8772 'He said/she said' situation; second 'she' backed up 'he' Calgary worker denied making threatening statements < Sexist pg. 1 < Swearing pg. 1 7 CANADIAN LABOUR REPORTER CANADIAN LABOUR REPORTER COLLECTIVE AGREEMENTS Canadian HR Reporter, a Key Media Canada (HR) Ltd. business 2021

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