Canadian Labour Reporter

December 13, 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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In March 2020, a coworker who was friends with his girlfriend and had heard the worker had abused her confronted the work- er. According to the coworker, the worker called him vulgar names on multiple occasions after that. On March 14, the coworker tried to clear things up but the worker started insulting him and invited him to the parking lot to fight. They started arguing and name-calling but the coworker refused to fight. Three days later, the coworker alleged that the worker made threatening, stabbing motions to a slab of meat after making eye contact. Later that day, the worker in- sulted him and said, "Fight me." The coworker walked away but the worker continued to taunt him. A short time later, the worker came up to the coworker in a cor- ridor, kicked him in the back of his legs and called him more vul- gar names. The coworker became angry and tried to walk away but the worker tried to goad him into fighting. The coworker said that he had seen photos of bruises on the worker's girlfriend, to which the worker responded that he had naked pictures of the coworker's mother. The coworker reported the matter, acknowledging that he had been angry and called the worker names but the worker kept trying to provoke him. The worker denied calling the coworker names, challenging him to fight, kicking his legs, or stab- bing the meat in a threatening manner. He said there were back- and-forth insults, but that was it. Cargill terminated the worker for bullying. It didn't discipline the coworker because it deter- mined he had been provoked and he took responsibility for his be- haviour. The union grieved the dis- missal, noting that the coworker was not disciplined for his role in the conflict. The worker said they were both in the wrong but only one person was fired "for noth- ing." The arbitrator found that the worker wasn't credible and he showed a "willingness to say whatever he thought would as- sist him at the time he was being questioned." The arbitrator noted that there was "significant tension" and there were several incidents of name calling, but the worker escalated the incidents and kept trying to goad the coworker into a fight. However, much of this behaviour was provoked by the coworker "loudly and publicly ac- cusing [him] of abusive assault of his girlfriend," the arbitrator said. The arbitrator found that the coworker should not have brought "personal issues and alleged misconduct outside the workplace" into the workplace and the worker's reaction was understandable. However, the worker "was determined to cre- ate a confrontation with [the coworker] and he pursued that goal over many days," which "was no momentary loss of con- trol." The arbitrator determined that the worker's pattern of behaviour, his disciplinary history, his failure to accept responsibility, and his attitude demonstrated that the employment relationship was no longer viable. Although it wasn't fair that the coworker wasn't dis- ciplined, there was no reason to reinstate the worker, said the ar- bitrator. Reference: UFCW, Local 175 and Cargill. C. Michael Mitchell — arbitrator. Daniel Leone for employer. Matthew Jagodits for employee. Nov. 2, 2021. 2021 CarswellOnt 15374 manager and the head caretaker in advance of all asbestos work. The principal/site manager and the head caretaker are to inform their site staff and tenants who may be in close proximity to the planned asbestos work." The work area was sealed with no airflow to the rest of the build- ing and the project followed proper procedure set out in the Ontario Occupational Health and Safety Act (OHSA). On Sept. 21, the school hosted a curriculum night for parents in the evening. As with any after- hours event, the TDSB approved it and informed the caretaking staff so they knew who was in the building after hours. The next day, several teachers contacted the union's health and safety inspector to express con- cern that they weren't notified of the asbestos work. The inspector passed the con- cerns to the acting principal, who said that the work was already completed. She then forwarded a report to all staff that summa- rized the completion of the asbes- tos work and the air quality test- ing that had been done. The union filed a grievance al- leging that the TDSB failed to no- tify teachers about the asbestos removal work. It argued that it was possible for teachers to be in the building in the evenings when the work was performed, as they could sometimes stay past 6 p.m. — and several were at the curricu- lum night. The union further argued that the TDSB's guideline was unrea- sonable because it only required notice to people in close proxim- ity to the work, despite the fact that asbestos exposure presented a "severe health threat." The union also said that the OHSA and the collective agree- ment required employers to take all reasonable precautions in the circumstances, which the TDSB didn't in this case. The arbitrator noted that the OHSA and its regulation on as- bestos in building repairs re- quired notification of workers who performed work "in close proximity" to asbestos "and may disturb it." This excluded some- one in a different area of the building, the arbitrator said. "I note that the language con- templates that a worker must not only be in close proximity to the asbestos work, but their work activity itself is capable of disturbing the material," said the arbitrator. "This, in my view, would require the worker to be either within the enclosed space or at least close enough that they could still disturb the as- bestos." The arbitrator also found that the TDSB didn't violate its guide- line, which applied the same con- cept as the OHSA with regards to people in close proximity being informed. In addition, since there was no violation of the OHSA and the collective agreement followed the OHSA, there was no violation of the collective agreement. "I do not see how providing no- tice to teachers would have pro- tected their health and safety, giv- en the safety protocols that were already in place," said the arbitra- tor in dismissing the grievance. Reference: Toronto District School Board and OSSTF. Colin Johnston — arbitrator. Nadine Zacks, Rono Khan for employer. Andrea Wobick for employee. Nov. 3, 2021. 2021 CarswellOnt 15933 Requirement only for employees in close proximity to work Coworker should have been disciplined for multiple reasons < Asbestos pg. 1 < Fight pg. 1 December 13, 2021 8 Canadian HR Reporter, a Key Media Canada (HR) Ltd. business 2021

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