Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2017 ARBITRATION AWARDS February 20, 2017 March 23, the club's professional manager, Cynthia Beck, placed MacDonald and a female employ- ee in charge of the bar and restau- rant in her absence. On the night in question, a fe- male member of the club was at the bar and according to Kristin Rheault, a server, she was "wast- ed" and "slurring" her speech. Rheault told MacDonald about the woman's condition and he agreed she shouldn't be served any more alcohol. The woman (who wasn't iden- tified) had spent the previous night at MacDonald's home, but they had a disagreement and he called police to have her removed from his place. When she heard that service was being refused by MacDon- ald, the woman walked to the bar and said, "Get (me?) a f---ing beer now. If not, then I am going to (president Marc Bowley) and get you fired." Bowley then went up to Mac- Donald and ordered him to serve the member. MacDonald refused and said, "If she is intoxicated, then there is a right to refuse." He cited B.C.'s "Serving It Right" guidelines. MacDonald was ordered to leave the bar which he did. He came back a while later after members of staff found them- selves shorthanded because there was nobody qualified to fully run the bar. Bowley saw him and again told him to leave. MacDonald refused, so Bowley called the police. Lynn Puersten was also a mem- ber of the executive who was at the restaurant during the con- frontation. She supported Bow- ley's actions during the incident. After a discussion with the po- lice, MacDonald decided to leave the bar. The executive held a meeting to discuss what should be done about MacDonald. On March 29, he was terminat- ed from his position. The union, Unite Here, Local 40, grieved the decision. Arbitrator James Dorsey up- held the grievance and said the executive over-reacted. "MacDonald did not cross those boundaries on March 25. He and the servers acted within their authority on their side of the boundary. Unhappily, Bow- ley did not demonstrate the same respect. He crossed the line and placed MacDonald in an unten- able position." The bartender was doing the right thing by supporting the server who had made the initial decision to refuse service, said Dorsey. "(ANAVETS) did not have just and reasonable cause to discipline him for supporting Rheault's de- cision to refuse service to the fe- male member. He was doing what is expected and necessary from a bartender when Rheault decided to refuse service." As well, the actions of Bowley and Puersten were grossly out of step with what constituted effec- tive leadership, said Dorsey. "What followed was not mis- conduct by MacDonald, but se- riously questionable leadership conduct by Bowley and Puersten, including confrontation and con- flict with the police officers when the officers did not take their side," he said. "The decision to dismiss was not an investigated, reflective, fact-based, reasoned and consid- ered decision, but an extension of the assertion of authority in the absence of Beck that prevailed on the Friday evening," said Dorsey. MacDonald was to receive all of his time owing and be rehired immediately with only a one-day suspension to reflect his behav- iour that night. Reference: Army, Navy and Airforce Veterans in Canada, Steveston Unit No. 284 and Unite Here, Local 40. James Dorsey — arbitrator. Ruby Mein for the employer. Jean Poulton for the employee. Dec. 20, 2016. Registered nurse loses her job after stealing pills A LONG-TIME registered nurse was fired after being caught steal- ing pills while working at Cam- bridge Memorial Hospital in On- tario. The nurse — identified only as "SM" — had more than 28 years of experience at the hospital and was about to be considered for a promotion when her thefts were discovered. On Aug. 15, 2014, another col- league noticed that pills were be- ing removed from an Omni Cell, which is a computerized vend- ing machine that dispenses pills. Nurses had to punch in a pass- code and a patient's name before the drugs were released to the nurse. The manager of the emergency department, Susan Harris-Howe, was told about SM's potential ac- tions, so she conducted an audit to determine if it was a problem. Initially, it was discovered that the thefts had gone back to 2011. Later, it was determined thefts were taking place from as far back as 2003. On Aug. 21, the employer con- fronted SM about it. After first she denied any wrongdoing, but upon further pressing, she admit- ted she was addicted to the pills and was taking them illegally. SM then went on long-term disability leave until September 2015. During that time, she at- tended an in-patient drug treat- ment facility before being re- leased. She was given a set of restric- tions imposed by the College of Nurses of Ontario, which includ- ed regular testing to prove she wasn't taking any pills. On Oct. 22, 2015, SM met with hospital management. A termi- nation letter was given on Nov. 2 and it read in part: "You admitted to engaging in a pattern of theft of narcotics (stealing 2 to 6 Percocet tabs per shift, sometimes divert- ing them from patients and falsi- fying the (records) to conceal the theft)." SM and the union, the Ontario Nurses' Association, grieved the dismissal, arguing she was being discriminated against due to her addiction. But arbitrator Dana Randall disagreed. "(SM) was unable to own up to the full extent of her misconduct, which I found very problematic. Being cured of an addiction requires full ownership of the misconduct, which I find, especially with respect to her his- tory of Tylenol 3 thefts, she was unable to do." The addiction in this case was not as egregious as other cases, said Randall, whereby a termina- tion was reversed due to discrimi- nation. "But in my view, which is con- sonant with the doctor's evi- dence, there are degrees of addic- tion. SM's addiction, based on her own evidence, was not compul- sive. She did not use at work. She went on vacation for one or two weeks without using. She suffered little or no withdrawal when go- ing off the Percocets." The nurse also didn't tell the employer beforehand that there might be an addiction — that was only after she was caught, said Randall. "Obviously, if SM had come forward with her problem pri- or to being caught stealing the drugs, the disposition of this mat- ter would have been different. "And while every addict won't be capable of doing that, in my view, based on all of the evidence, SM's capacity to do that was not sufficiently impaired to mitigate the penalty of dismissal and I so find." Reference: Cambridge Memorial Hospital and the Ontario Nurses' Association. Dana Randall — arbitrator. Seann McAleese for the employer. Rob Dubrucki for the employee. Jan. 19, 2017. < Bartender pg. 1 'Not misconduct, but seriously questionable leadership conduct by Bowley and Puersten.'

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