Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2017 ARBITRATION AWARDS March 27, 2017 worker's actions, said O'Donnell. Roy complained that "(the pre- vious attendant) gave X a fleet (enema) and now X is full of s---. I should just leave X like that," said O'Donnell. As a result, the resident's cloth- ing needed to be changed. X suf- fered from dementia and required special care. Attendants were sup- posed to leave the patient alone during difficult times and return after a period of calm. But Roy insisted that X had to be cleaned immediately. O'Donnell said the patient be- gan to lash out physically so Roy grabbed the patient's arms and torso in an effort to restrain him, despite O'Donnell's protests. At one point, O'Donnell said she thought, "(Roy) was going to rip his head off or break his arm." When they attempted to move the patient, Roy manually grabbed X and forced him onto a chair without using a canvas lift, which was protocol. O'Donnell testified if she didn't place her foot beside the chair leg to steady it, the pa- tient may have landed on the floor due to Roy's rough treatment. When the patient was secured in the chair and the cleaning was complete, O'Donnell left the room because she was too dis- traught. She later mentioned something briefly to Jane Van Horne, supervising registered nurse, and promised to further elaborate the next day. On Aug. 23, O'Donnell told Van Horne about what happened. When Roy arrived at work later, Van Horne spoke with him but he wasn't responsive. "He was just listening," said Van Horne. Barbara Foley, director of nurs- ing, and Ken Murray, administra- tor, met with Roy on Aug. 27 to discuss the incident. During the meeting, Roy ad- mitted his behaviour was not ap- propriate but offered no explana- tion as to why. Beverley Mann, president of the Canadian Union of Public Employees (CUPE), Local 2354, testified, "(Roy) did not say much" and his "head was down" the whole time. Roy was suspended by Murray pending further investigation. On Aug. 31, Roy was termi- nated for abusing a resident, both verbally and physically. The report was escalated to the New Brunswick department of social services and Roy was invit- ed to attend a meeting. But he re- fused to meet with investigators. Sandy Lapointe, Roy's wife, tes- tified that he had been experienc- ing severe stress due to the health of his father and that could be an indicator of his mental state dur- ing the incident. CUPE grieved the dismissal and argued Roy did not show mal- ice toward X at any point, despite his actions. It said he should have been given further training to help better deal with problem patients. The union argued that because Roy was allowed to finish his shift and attend work over the next few days, the employer therefore con- sidered the incident to be not se- vere. Arbitrator Michel Doucet dis- missed the grievance and said Roy's reluctance to participate in the hearing or the ministry inves- tigation contributed to his finding. "Roy was offered many oppor- tunities to explain his behaviour, but he never gave any. There was no evidence of remorse on his part and no evidence that at any time he apologized for his actions." Nursing home attendants re- quire "care, compassion, devo- tion, patience and profession- alism," said Doucet, and these weren't provided by Roy. "The words and actions of Roy towards patient X were demean- ing, humiliating and unprofes- sional. This kind of attitude is un- acceptable and constitutes abuse," said Doucet. Reference: Campbellton Nursing Home and Canadian Union of Public Employees, Local 2354. Michel Doucet — arbitrator. Sophie Noël for the employer. Michel Boudreau, René Doucet for the employee. Oct. 2, 2016. Second last-chance agreement broken by saw operator JASKARAN SANDHU had been under a second last-chance agree- ment (LCA) with his employer when on three separate days, he didn't call his doctor's office to check in. Sandhu was diagnosed with an alcohol dependency in November 2011 and entered into a treatment facility. He returned to his job with Canadian Forest Products in the Isle Pierre, B.C., division in March 2012 and entered into his first LCA. In October 2013, Sandhu had a relapse with alcohol but negoti- ated another LCA that stipulated he must call in to a doctor's office every week day, attend Alcoholics Anonymous meetings, obtain a sponsor and complete the 12-step program. As well, he was required to submit to random blood and urine tests whenever requested by his physician. The wording of the second LCA indicated it was "intended to truly be the last chance." On Dec. 31, 2015, which was a work day, Sandhu didn't call the doctor's office — which under the rules of the LCA was considered a positive test — but later Sandhu said he was sick and he thought that meant he didn't have to call in. On Jan. 4 and 5, 2016, Sandhu again missed calling in to the doc- tor. This time, he said it was be- cause he was on vacation and thus wasn't required to call in. During a Jan. 6 meeting with the company, Sandhu didn't ac- cept responsibility for not calling in when he was required. On Jan. 7, Sandhu met with the doctor to discuss his recovery progress. When he was asked how things were going with his sponsor, known as "Albert," Sandhu said everything was fine. However, the doctor knew that Albert had died about three months previously, which indicated Sandhu hadn't truly been in contact with him as specified in the LCA. Sandhu was terminated on Jan. 11 for missing three separate days of call-ins. A letter spelled out the reasons and said in part: "You have failed to take any responsibil- ity for your actions, and your post- incident conduct has shown that you have no intention of attempt- ing to restore the employment re- lationship." Canadian Forest Products maintained Sandhu was not ef- fectively pursuing a cure for his alcohol dependency and after the second LCA was breached, it was time to sever their relationship. The union, United Steelwork- ers (USW), Local 1-424, grieved the dismissal and said Sandhu wasn't terminated in the past when he missed calling the doc- tor, which gave him the feeling that 100 per cent compliance with the LCA was not required. By not contesting previous missed calls, the union said the LCA was ren- dered null. USW also said the company had a continued duty to accom- modate the employee. But arbitrator Arne Peltz de- nied the grievance and found that Sandhu had exhibited deceitful behaviour when discussing the non-calls with Canadian Forest Products management. "Sandhu's answer during the investigative meeting was dis- honest. He stated he didn't think he had to call the doctor's office and never had called in the past," said Peltz. "He lied about having a sponsor and when confronted, gave no explanation. It emerged that Sandhu had been seriously deficient in following his treat- ment plan for months before the termination, but hid the breaches and never approached the doctor for help." Sandhu's recovery was not go- ing well, according to Peltz, and therefore the employer's accom- modation had its limits. "Sandhu breached his moni- toring obligations and effectively abandoned the AA program," said Peltz. "It is undue hardship for an employer to continue accommo- dating an employee for whom the prospects of success are marginal." Reference: Canadian Forest Products and United Steelworkers, Local 1-424. Arne Peltz — arbitrator. Michael Wagner for the employer. Sarbjit Deepak for the employee. Feb. 20, 2017. < Nursing home pg. 1

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