Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2017 October 16, 2017 ARBITRATION AWARDS Denials continued despite interviews with students in room On the morning of Dec. 9, Hart didn't arrive at work as usual and Gordon Hutton, municipal build- ings and assets manager, became concerned about his well-being. Hart fell off a truck on Nov. 23 and injured his ribcage. He had taken a few days off since the in- jury and was treated by his doctor. Each time he couldn't work, Hart informed a supervisor by cell- phone. However, Hart also dropped his phone in the snow so it was lost for a few days. Eventually, it was returned to him. At the time, Hart said he had ongoing issues with the phone and he could not an- swer calls, even though he could see who was calling. On the evening of Dec. 8, Hart said he had a flare-up of pancre- atitis and needed to recover at home the next day. He testified he sent a text message on his wonky phone, but Hutton said he never received a text from Hart. Hutton went by Hart's home in the after- noon, but didn't hear from him af- ter knocking on his door. During that day, Hart said he went to the doctor and he was pre- scribed painkillers which he said made him lose track of the day, and his memory of it remained hazy. He was able to contact Hutton on Dec. 10, but didn't show up at work until Dec. 11. He was sus- pended pending an investigation about his Dec. 9 no-show. After he was terminated, the Canadian Union of Public Em- ployees (CUPE), Local 1458, grieved the termination on Jan. 6, 2016, and argued the firing was excessive considering only one previous discipline letter had been issued to Hart for a Septem- ber incident. Hart had appeared for his regular shift that morning, but was ordered to go home after he admitted he was still intoxicat- ed from the night before. The union said that because Hart had been addicted to pain- killers and alcohol and he was undergoing treatment, the firing contravened the human rights code because of his disability. The employer countered and said because Hart had received two coaching letters for previous incidents, the dismissal was justi- fied. Arbitrator Andrew Sims — chairing a board of arbitration with two other members — or- dered the municipality to rein- state Hart immediately. "While we understand the em- ployer's frustration after Dec. 9, the basic fact remains that Hart's offence was missing a day's work, failing to phone in appropriately, and failure to give a clear account of why that happened. He had nothing but a written warning on his record. We agree with the union's assertion that this is not a situation where progressive disci- pline, with its advantages of fair- ness and warning, should give way to outright termination." The municipality should have taken better care in assessing the incident, especially considering Hart's condition, said Sims. "There is no doubt that the management team viewed the events of Dec. 9 as a recurrence of the grievor's drinking issues. That may well have been the case, although the evidence suggests it was probably more complex than that, with heavy prescription drugs or alcohol being taken not just through habit but as a form of inappropriate self-medication due to the pain caused an attack of pancreatitis and the anxiety and panic that precipitated. "It is a secondary point, but the employer's knowledge of his medical issues should have led the employer to give some more care- ful consideration to the likelihood that the absence had at least some connection to his disabilities. It did not do so," said Sims. "Given the lack of real progressive disci- pline and these related issues, we find termination to be excessive in the circumstances." Reference: Jasper (Municipality) and Canadian Union of Public Employees, Local 1458. Andrew Sims — arbitrator. Craig Neuman for the employer. Robert Szollosy for the employee. Sept. 7, 2017. < Jasper pg. 1 manently in 2005. On Feb. 22, 2013, Kondruck left class and did not properly close a door to a room that contained knives, a stove and cutlery, and was used for classes in nutrition and cooking. Because the school served some students with autism (among other disorders), the door was des- ignated to be secured at all times when a teacher wasn't present. After Kondruck finished his assignment that day before lunch period, he received another re- quest to work at another school after lunch. He immediately left for the other school, which was located on the other side of the district. During lunch period, Katherine Gillis-DeJong, also an occasional teacher, noticed the cooking class door was ajar. She looked in and found a student sleeping at one of the desks. She asked the student to leave the room and then went directly to the vice-principal's office to re- port what happened. While that was happening, the regular teacher for the class, Lynn Andrews, returned from a profes- sional-development assignment and found the door unlocked. She also informed the vice-principal who requested Andrews email Kondruck about the incident. He responded via email: "I don't recall the circumstances but I would not have left a student in the classroom even though I was pressed to be at Essex S. that after- noon. Also, the key I was given did not work in the door." Paul Antaya, superintendent of education, was apprised of the situation and he asked Andrews to speak with each member of the class to find out how the door be- came unlocked. After the investigation, it was decided that Kondruck left the sleeping student alone when he left the room after the class. In a meeting with Antaya on March 26, Kondruck maintained his story, refuting that he left the door open and unlocked. Antaya decided to terminate Kondruck for the incident as well as two pre- vious written reprimands and two suspensions Kondruck had re- ceived during his career with the employer. The union, Ontario Second- ary School Teachers Federation, grieved the dismissal and argued Kondruck leaving the door un- locked on one occasion wasn't enough to warrant his firing. Arbitrator Norm Jesin upheld the grievance and ordered Kon- druck be returned to his position, but with a punishment as substi- tute for termination. "I have determined that in light of the record and Kondruck's con- duct on Feb. 22, 2013, coupled with his reluctance to accept full responsibility for this incident, a suspension for the time of his dis- charge until the end of the 2012- 13 school year should be substi- tuted on his record." Kondruck went through per- sonal bankruptcy after he was terminated, according to Jesin, and, "I do not think the grievor should bear the loss for this period of time. Discharge was simply too harsh a penalty in all the circum- stances." Kondruck's long service should have been taken into account when deciding what punishment was appropriate. "I have considered that Kon- druck has taught for the employer or its predecessor for approxi- mately 13 years spanning over a period of nearly 35 years. Al- though this incident should not be taken lightly, it does not demon- strate, even with the grievor's re- cord, that the grievor is incapable of continuing as a valuable occa- sional teacher," said Jesin. Reference: Greater Essex County School Board and Ontario Secondary School Teachers Federation . Norm Jesin — arbitrator. Leonard Kavanaugh for the employer. Vaino Poysa for the employee. Sept. 25, 2017. < Windsor pg. 1

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