Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2016 September 5, 2016 ARBITRATION AWARDS advised by manager of labour re- lations Marla Fowler that he was being accused of time theft, leav- ing work early, submitting false hourly cards and mileage, as well as making false sick-leave claims. Douglas admitted all of the ac- cusations were true, but said his immediate supervisor, known as a family team leader (FTL), knew about his behaviour and con- doned it. The FTL fostered a "permissive" environment that spawned the various transgressions. The FTL was accused of attending his own home during working hours, to check up on site construction, and of arriving late and leaving early often, as well as conducting per- sonal business and shopping when he was supposed to be working. As a result, Douglas was often left on his own. "FTL told him he could run per- sonal errands during work hours or go home early if all his assign- ments were completed, on condi- tion he was available by telephone to deal with any new assignment," said arbitrator Tanja Wacyk. "This appeared, from the surveillance of the FTL, to be the way the FTL managed his attendance at work, and it is not difficult to conclude that in that context as well, the grievor was not expected to do more than his FTL." In addition, the FTL had dis- cussions with Douglas about potentially finding another job with TDSB because there wasn't enough work to justify his contin- ued employment. Despite the "relaxed" atmo- sphere, all of Douglas' work was being completed regularly. On May 15, 2015, the FTL and Douglas drove to a job site in Shel- burne, Ont., about 100 kilometres northwest of Toronto. After a cou- ple of hours there, they went to In- nisfil, Ont., to buy a garbage com- pactor for the FTL's personal use. The pair then went to Stouffville, Ont., where Douglas was dropped off at his trailer. Douglas was told he could claim eight hours that day, even though they didn't return to Toronto the rest of the day. The FTL initially said they were in Toronto later that day, but on cross-examination he changed his story after being presented with cell phone records indicat- ing he was in Markham, Ont., near Stouffville, at 2:48 p.m. Since Douglas' shift was over at 3 p.m., it wasn't realistic to expect him to drive back and resume his duties in Toronto. Another reason for termination happened during the period of Aug. 19 – 21, 2015, when Douglas called in sick for three days, after being turned down for lieu days or sick days' credit. His claim of sickness was accepted by the FTL, even though he was the one who didn't approve the earlier request for time off. On two of those days, Douglas helped his brother-in-law to de- molish his home and was paid for his time. When questioned by Fowler during an investigation meeting, Douglas said "he had never done so before coming to the Central Services, and that 'it's too loosey goosey' and that he made mis- takes and took advantage of the lack of structure." The arbitrator ordered Douglas reinstated. "Outside of the most egregious circumstances, which I find do not exist in this instance, it is now widely accepted that the lack of warning to an errant employee that their job might be in jeopardy, may lull them into a false sense of security about their work perfor- mance. To then discharge the em- ployee without warning is 'mani- festly unfair since the employer has tolerated the relaxed stan- dards which had been in existence and which the employee may have considered to be the norm.'" Douglas was ordered to have a five-month suspension without pay to remain on his record and the TDSB was ordered to com- pensate him for the illegitimate termination. Reference: Toronto District School Board and the Canadian Union Of Public Employees, Local 4400. Tanja Wacyk — arbitrator. Edward O'Dwyer for the employer. Tim Gleason, Rebecca Liu for the employee. July 28, 2016. Power worker lied about smoking medical marijuana A worker who possessed a valid prescription for medical mari- juana, but did not disclose it to his employer, triggered a termination when the company found out. In 2015, Brendon Uprichard was offered a position as an assembler working at the Lower Churchill Project (LCP) in Labrador, N.L., after being contacted by a former colleague. The project will see a hydro-electric generating station built in Muskrat Falls, N.L. Since December 2014, Uprich- ard had been taking legally pre- scribed daily medical marijuana for back, knee and hand pain, as well as for anxiety. In April, he passed a pre-em- ployment physical test, including one for drugs and alcohol. Because it was a potentially dangerous job, which included a power generat- ing facility, reservoir clearing and transmission line construction, the company decided to make the facility a "dry site." Uprichard passed his pre-em- ployment test because he did not consume marijuana for two weeks. On his written submission, he left the part blank where it asked about certain drugs and potential side ef- fects. The site policy also called for testing if the employer suspected a worker of being under the influ- ence of an illegal drug or alcohol while on the job. On Aug. 19, Uprichard was vis- ited at the site by two managers during a safety audit. When they came upon a pickup truck, they noticed a smell of mar- ijuana emanating from inside. It was the truck that the crew used to reach the site that day, including Uprichard. Eventually, the managers were advised of Uprichard's medical marijuana prescription. During questioning, he admitted that if he were tested for marijuana at that time, he would not pass the test. Uprichard regularly smoked off-site around 7:30 p.m. after his shift, by hiding his stash of dried marijuana in a ditch away from the residential camp. Then he would return to the camp and rest until his next work period. He tes- tified that he was never impaired while he was working. He was terminated Aug. 25 for violating the drug and alcohol standard. The International Brotherhood of Electrical Workers argued that Uprichard was being discrimi- nated against because of his dis- ability and the employer could not institute an absolute prohibition against medical marijuana. A "good faith occupational qual- ification" has been established, said arbitrator James Oakley, which is valid in denying the use of drugs on-site because "the policies are rationally connected to the safety- sensitive nature of the job, and the policies were adopted in the belief they were necessary to achieve the purpose of safety in the workplace." The employer did not refuse to accommodate Uprichard with re- spect to his use of medical mari- juana. Therefore, this case does not violate the Human Rights Act. As well, Uprichard contended the doctor who prescribed the drug advised him not to drive four hours after ingesting it, and he al- ways complied with this order. But he violated a pre-condition of em- ployment when he failed to dis- close his prescription, said Oak- ley. "(Uprichard) did not notify his supervisor or manager before starting work of any potentially unsafe side effects." This constituted a violation of a safety absolute. "The LCP hand- book states that violation of a safe- ty absolute is grounds for termina- tion of employment in the absence of exceptional mitigating circum- stances. There are no exceptional mitigating circumstances estab- lished in this case. The contractor, Valard, had just cause to termi- nate the grievor's employment," said Oakley. Reference: Lower Churchill Transmission Construction Employers' Association and the International Brotherhood of Electrical Workers, Local Union 1620. James C. Oakley — arbitrator. Darren Stratton for the employer. Phillip Hunt for the employee. March 9, 2016. < School pg. 1

• Cover