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8 Canadian HR Reporter, a Thomson Reuters business 2017 ARBITRATION AWARDS June 19, 2017 placed it in the fridge to be eaten at her next break. Later, when she attempted to retrieve it, the slice was gone. An investigation of the store security videotapes by Scott Beauchesne, operations manager, showed two employees accessed the fridge between 9 a.m. and noon, when Macneill returned to eat the pie. The other worker grabbed something from the bottom shelf, but Beauchesne testified A.B. grabbed something that looked like a piece of pie from the top shelf, where Macneill said she left her piece. But during the investigation, A.B. claimed he purchased the pie on a previous shift and had left it in there to be consumed the next time he was working, which was Monday. There was a disagreement on which shift the pie was purchased: Beauchesne reviewed videotapes and saw A.B. purchased only french fries on the Sunday shift. A.B. claimed that he might have purchased the pie during his pre- vious shift (which was on a Thurs- day) but he was unclear. He maintained that the pie he ate was his property. But A.B.'s repeated requests to see the tape for Sunday and the tape for Thursday were denied. He reported a threat made by another employee to him on Sun- day, and A.B. said he was flustered and stressed during the following week while the investigation was ongoing. At the time, A.B. felt the super- visor did not take his allegations seriously enough. A.B. said he believed the initial investigation meeting on Dec. 14 was to discuss the threat. After A.B. was let go on Dec. 21, he wrote a letter later that day: "I again apologize for taking the slice of pie and I am willing to pay the cost of the pie to whichever em- ployee it belonged to. I am sorry I did it and would like a second chance." The company cited another case that same month, in which two employees were fired for stealing another's orange juice boxes, which had been purchased and left clearly labelled with his name in a fridge. The union, United Food and Commercial Workers, Local 401, grieved the decision and argued it was excessive. A.B. had been diag- nosed with bipolar disorder and was also battling addiction issues. It asked for $35,000 in damages to be awarded to A.B. and a fur- ther $20,000 to the union. Arbitrator Francis Price up- held the grievance and awarded $15,000 to A.B. for mental dam- ages and $5,000 to the union for breaching the collective agree- ment. A.B. was also reinstated to his job with all lost wages restored and his seniority intact. "A.B.'s requests and (Sobeys' Code of Business Conduct and Ethics) requirement for investiga- tion 'in a manner that respects all of the parties involved' was not met. Beauchesne's refusal or fail- ure to even check the Thursday video as requested and to show the grievor and shop steward did not meet the code of conduct and so breached the collective agree- ment," said Price. "A.B.'s belief — that he had pur- chased the piece of pie on the Sun- day — may have been mistaken and possibly disproved by the vid- eo (though not shown to A.B., nor at the hearing). But with no video available, I do not accept that A.B. was lying, but find it is more prob- able, in all of the circumstances of the Monday meetings, that A.B. was confused as to when he might have purchased the pie and stored it in the fridge." By not reviewing the Thursday tape, the employer "failed to prove on the balance of probabilities that A.B. had that intent and so committed theft," said Price. "This failure of the employer to prove the issue of theft is com- pounded by the employer's fail- ure to provide the security videos from the Monday, Sunday and Thursday in question." Reference: Sobeys Capital and United Food and Commercial Workers, Local 401. Francis Price — arbitrator. Adam Kaukas for the employer. David Williams for the employee. May 29, 2017. Ontario nurses' requests to change leave designation denied THREE REGISTERED nurses who worked at Toronto's Sun- nybrook Hospital requested the employer convert vacation leaves to sick time off after each experi- enced health problems. Sara Lee scheduled a four-week vacation to begin April 28, 2015, but the day before she went to her doctor after experiencing swell- ing in her feet. She was scheduled to take a maternity leave after her vaca- tion. Her doctor recommended Lee stay off her feet for the next four weeks to reduce the swelling, and said she was not fit to work. Tatjana Milenkovic was off work due to shoulder pain from June 25, when a scheduled vaca- tion was to begin Aug. 24. She ultimately remained off work until Sept. 16. Her doctor wrote a note Aug. 5 that said she was unfit for work. Milenkovic had a cruise vacation scheduled, but on the advice of her physician, she stayed home and continued physiotherapy and drug treatment. She returned to the job Sept. 16, working modified duties, and was back at Sunnybrook on a full- time basis on Oct. 12. Rita Neumann had elbow pain on May 6 and the next morning she also had a migraine headache and hand numbness. She remained off work the next few days and saw her doctor, who diagnosed tendonitis and recom- mended she not work until June 1. Neumann returned to work on June 1 and filed a grievance June 15, after a request to convert va- cation days to sick leave was de- nied. The union, Ontario Nurses' Association, argued the nurses all experienced "serious illness" as was specified in the collective agreement and, therefore, vaca- tion time was not being enjoyed and the employees were not able to work in any case. The employer argued that the nurses were not seriously ill and could have pursued modified work, which it said is often of- fered in other circumstances. Arbitrator Jasbir Parmar up- held the grievances for Milenkov- ic and Neumann, but dismissed Lee's case. "I find that even if Lee's condi- tion was an illness, it was not a se- rious one. The swollen feet were only painful when she walked. The only treatment she required was to keep her feet elevated and use ice," said Parmar. "A reason- able person would not consider this a serious illness." With respect to Milenkovic, "her pain was so severe that she was prescribed narcotic medica- tion, and muscle relaxants which made her groggy. She needed help with basic self-care, such as dress- ing and showering," said Parmar. "Milenkovic had been advised by her doctor not to proceed with her planned travel on a cruise during this period but rather con- tinue with her medication and physiotherapy. Milenkovic also indicated she still required assis- tance to dress herself during this period. She also continued to take the narcotic and muscle relaxant medications throughout this pe- riod." Milenkovic's time off from Aug. 24 to Sept. 7 was allowed to be converted to sick leave. But Neumann's case was a bit more complex, according to Par- mar. "There is no evidence upon which it could be concluded that it was the doctor's view Neumann needed to remain off work for the entire period." "Based on the specific circum- stances of Neumann's medical care, opinion and treatment and her activities during this period, I accept that on May 11 her con- dition was serious. However, the evidence is insufficient to con- clude that her condition was still serious by May 19," said Parmar. Neumann's sick leave was or- dered converted but only for May 11, ruled Parmar. Reference: Sunnybrook Health Sciences Centre and Ontario Nurses' Association. Jasbir Parmar — arbitrator. Brian Smeenk for the employer. Sandy Donaldson for the employee. May 29, 2017. < Piece of pie pg. 1

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