Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2017 ARBITRATION AWARDS July 17, 2017 said as a supervisor he "ought to have known that your comments would cause harm to employees." During an arbitration hearing, Gordon claimed that she felt Henry was making a threat of harm or death toward her, but Henry said the statement was made because he believed she was a "problem" em- ployee who should be transferred. In spring 2011, Dr. Woo ad- vised Gordon could return to the workplace, but she could not remain in her present unit due to her perceived persecution from other workers. As well, she should not work evenings and her return should be gradual, beginning with a three-day work week for the first five weeks back on the job. TCHC began an effort to ac- commodate Gordon by offering her a job in another unit. But on August 18, psychiatrist Dr. Cheryl Rowe in a letter said due to Gordon's psychological state, "(she) is currently unable to work in any capacity." On Feb. 8, 2012, human resourc- es representative Pat Milana began another process of offering Gordon a different job with TCHC. Gordon eventually accepted — "under duress" due to her wors- ening financial condition — a position as a clerk, with a return to work on July 25. She wrote an email to TCHC promising to work five hours per day, three days a week as per her doctor's accom- modation orders. She appeared at her new work- place on Wednesday and wrote an email just before 2 p.m. advising her boss that she would return for her next shift on Friday morning. When she didn't show up for work on Thursday, TCHC termi- nated her employment via email: "You left the workplace on July 25, prior to completing your sched- uled shift, and you did not report to work on July 26, without autho- rization and/or without legitimate explanation for doing so." The union, Ontario Public Ser- vice Employees' Union, Local 529, immediately grieved the firing. Arbitrator Mary Ellen Cum- mings upheld the termination grievance but dismissed eight other grievances that were filed by Gordon alleging various levels of mistreatment by management over the previous few years. "At no time did TCHC warn Gordon that a failure to work the full-time hours that the employer expected would result in disci- pline," said Cummings. "When Gordon left work on the Wednes- day after 5 hours, telling her man- ager she would return on Friday, the employer did not warn Gor- don that if she failed to show up on Thursday she would be fired." To uphold the firing, said Cummings, "would be an un- justifiable rejection of the pro- gressive discipline system, a cornerstone of Ontario's labour relations regime." But the arbitrator found that Gordon's overall behaviour was less than exemplary. "Gordon obstinately refused a perfectly reasonable request to return equipment related to a position she had not held for 18 months. Moreover, Gordon filed a grievance complaining about the employer's reasonable request, asserting discrimination on the basis of race, with no facts in sup- port. This is but one example of how incredibly frustrating it has been for the employer to deal with Gordon. Even the simplest of workplace interchanges devolve into unsubstantiated and unjusti- fied allegations of discrimination," said Cummings. Reference: Toronto Community Housing Corporation and Ontario Public Service Employees' Union, Local 529. Mary Ellen Cummings — arbitrator. Donald Jarvis and Evan Daikov for the employer. Katherine Ferreira for the employee. June 22, 2017. < 'Frustrating' officer pg. 1 his train operated in a "safe and controlled manner." The incident involved exceed- ing the maximum permissible speed on nine separate occasions and failing to stop before mov- ing over two public crossings at grade. His overall misconduct was deemed "gross negligence," but he was reinstated with a settlement after his dismissal was grieved. After the employee's reinstate- ment, he was suspended for 15 days for running through a switch. On June 24, 2015, the employ- ee and his crew were told to stop what they were doing and go to a train yard near Cambridge, Ont., that provided rail service to auto- motive plants. Because of the short notice, they were late to achieve their target and the trainmaster didn't make alternate arrangements for their lunch break, which was pro- vided for in the collective agree- ment. The crew worked through their lunch break until they completed the assignment seven hours after the start of their shift. About 25 minutes after the crew returned to home base, two supervisors approached the em- ployee's locomotive, which was shut down and not moving. They saw the employee lying back in the conductor's seat with his legs and feet stretched over the helper's seat and control stand. The engineer was wearing safe- ty classes and his hooded sweat- shirt was covering his face. Both supervisors confirmed the employee was sleeping, then opened the door and called his name. After he didn't respond, they spoke louder and the employee woke up. The employee was told he was violating a CP general rule that prohibited employees from en- gaging in "non-railway activities which may in any way distract their attention from the full per- formance of their duties" while involved in train movement or handling track switches. The employee explained that he was on his lunch break, "on duty but not performing work, when I was relaxing on my break." Following this incident, CP examined the locomotive's black box to determine the employee's running speeds and locations dur- ing his previous two shifts. The investigation found the employee had exceeded the 10 miles-per-hour authorized speed for the area — which featured resi- dential subdivisions — nine times, travelling between 13.6 and 17.2 miles-per-hour. Three of these occasions con- stituted "uncontrolled move- ment" — five miles-per-hour above permissible speed — but the emergency brake was never applied as required by procedure. The employee wasn't able to explain his speeding, other than it happened in a rural area with hills and valleys that affected the train's speed. The engineer said he thought he was operating the train in a safe manner, "keeping in mind fuel conservation and wear and tear on equipment." CP dismissed the worker for speeding and sleeping on the job. The union, Teamsters Canada Rail Conference, grieved the dis- missal, arguing CP had "thrown the book" at the worker and used "every possible rule violation" as a reason to terminate his employ- ment. The arbitrator found that while sleeping on the train was against the rules, the worker had finished his assigned work and had worked through his lunch break. Had the issue just been this in- cident, the arbitrator said a lesser penalty would have been appro- priate. However, the worker was also dismissed for speeding. Given his prior discipline for similar misconduct and the safe- ty considerations of speeding, the arbitrator found dismissal was an appropriate action for CP to take. The worker had 25 years of ser- vice, but his disciplinary record didn't justify a mitigation of the penalty, the arbitrator said in dis- missing the grievance. For more information see: • Canadian Pacific Railway and Teamsters Canada Rail Confer- ence (Gilks), Re, 2016 Carswell- Nat 6514 (Can. Railway Office of Arb. & Dispute Res.). < Engineer's speeding pg. 1 'Gross negligence' led to employee's 2012 dismissal from CP

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