Canadian Labour Reporter - sample

March 19, 2018

Canadian Labour Reporter is the trusted source of information for labour relations professionals. Published weekly, it features news, details on collective agreements and arbitration summaries to help you stay on top of the changing landscape.

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Canadian HR Reporter, a Thomson Reuters business 2018 March 19, 2018 ARBITRATION AWARDS 8 custody unit. An inmate, identi- fied as "A," showed him a necklace that had two teeth sewn into it. A claimed the teeth were from his grandfathers and, as an In- digenous inmate, the necklace was culturally significant to him. The correctional officer wanted to show the necklace to another inmate, whom he said was his uncle, so he asked Paplinskie if he could be escorted to just outside the general population cell block to show his uncle the necklace. Paplinskie escorted the inmate to interact with the other inmate, and he then escorted him back to his cell without further incident. Paplinskie testified he felt "em- pathy" for the First Nations in- mate. "I thought for a brief moment it would be OK." On Nov. 5, inmate "C" told an- other CO that A had previously assaulted him and he lost two teeth as a result. After a brief investigaion, it was determned that the teeth be- longed to C. During the investigation into his actions the previous day, Pap- linskie was candid about what happened and he acknowledged that he had "fucked up." Lisa O'Brien, superintendent, conducted an audit of the log book for the week. She found mul- tiple instances of errors made by Paplinskie, in addition to Paplins- kie having not reported the move- ment of the inmate. When he was confronted, Pap- linskie admitted to his mistakes in the log book. On Dec. 10, Paplinskie worked a shift that covered the laundry room, in which inmate "D" was the sole occupant. Logan Ernst, CO, handed a set of keys, includ- ing the laundry room key, to Pap- linskie, so he could fetch D and bring him to the methadone treat- ment area. As Ernst waited for the transfer, D said, "Look what he gave me," and showed him the set of keys in his hands. Paplinskie said it was a joke and he immediately took back the keys from D. Ernst testified he was shocked about the incident. But Paplinskie testified that he had dropped the key while es- corting D and after D laughed, he said, "If you can do a better job, you hold onto it." The entire ex- change lasted about 10 seconds. On Dec. 12, Ernst filed an inci- dent report. When he was questioned about the incident, Paplinskie said, "I made a poor judgment call and I apologize not only for what I did but for putting Logan in a position like that." He explained that he was stressed in his daily life due to a marriage breakup. After the investigation, Pap- linskie was terminated on March 11, 2016. The Ontario Public Ser- vice Employees Union (OPSEU) grieved the termination. Arbitrator Michael Watters up- held the grievance and said time off the job was enough punish- ment for the three incidents. "I recognize that (Paplinskie) cannot be reinstated to a CO pos- ition at the Brantford Jail given its recent closure. It is left to the par- ties to determine the location of the new work site." Despite what happened, the employer-employee relationship wasn't broken, said the arbitrator. "It is reasonable and appropri- ate to afford (Paplinskie) a further, and perhaps last, opportunity to demonstrate that he understands what is expected of a CO and to earn back the employer's trust." The errors in the log book were not enough to impose a serious discipline because "it is apparent that some of the entries made by other COs in the log book did not reflect a uniform and consistent practice and were, in some instan- ces, contrary to applicable policy and the standing orders of the Brantford Jail," said Watters. "This is an issue that may merit the employer's attention." What Paplinskie did was wrong, according to Watters, but it should not have resulted in a ter- mination, especially in light of the turmoil in his family life. "The handing of the key to in- mate D was very likely akin to a spur-of-the-moment reaction. I further determine that the inci- dents relating to both the necklace and the escort of inmate A re- sulted, in large part, from (Paplin- skie's) failure to do the necessary follow-up once he was shown the necklace," said Watters. Reference: Ministry of Community Safety and Correctional Services and Ontario Public Service Employees Union. Mi- chael Watters — arbitrator. Roslyn Baichoo for the employer. Richard Blair for the employee. Feb. 28, 2018. 2018 Carswel- lOnt 3296 him to come into work the follow- ing morning. Zwozda called New- ton back and said he didn't see a flight arrangement made for him on the company web site and in any case, it was too late for him to get to Firebag the next day. The following morning, Zwoz- da called in sick and he texted Kevin Phillips, shift supervisor, to inform him he couldn't make it in to work. Phillips eventually re- sponded with: "K take care." When Zwozda returned to work on May 30, he was asked by Rick Babb, shift supervisor, why he hadn't contacted integrated disability management (IDM), which was the usual process when calling in sick. Zwozda said he thought the process had changed due to the wildfire and he wasn't told by a supervisor to contact IDM, which was the standard procedure. On June 3, he spoke to a repre- sentative from IDM and said he didn't seek any medical attention while he was off from May 16 to 23. On June 8, Leanne Baker, ad- judicator of STD benefits, advised Zwozda that he wasn't eligible to be paid the week he was off be- cause "you did not seek medical attention to report or address these symptoms." As a result, Zwozda was called into an investigation meeting on June 14. Zwozda said he may have ad- vised the Morneau Shepell intake caller on May 16, that he was off that week due to "personal emer- gency (fire — town evacuated)," but he was feeling sick as well and had a wisdom tooth removed, which included Zwozda being prescribed opioid painkillers. Because the intake caller heard he was evacuated, she didn't con- tinue with the prescribed script for sick workers, so he wasn't told to contact IDM and make a claim. But on July 20, Zwozda was fired via letter. "It has been deter- mined that you were repeatedly dishonest throughout the inves- tigation process. Additionally, we found you to have fraudulently ap- plied for sick leave under our In- tegrated Disability Management program." Arbitrator Francis Price upheld the grievance and ordered the em- ployer to reinstate Zwozda. "(Zwozda) did not give just cause for any form of discipline arising out of the events in this case, based on the employer's grounds for the termination of repeated dishonesty and fraudu- lently applying for sick leave," said Price. "I find that no discipline was warranted." A large part of the blame for the misunderstanding was placed on the third party who administered the call-in line for sickness, he said. "Indeed, the agent did not ask (Zwozda) the reason for his ab- sence, but simply put (Zwozda) 'off ' for the set unless he was called back earlier (which he was not). At this point, the basis for (Zwozda's) absence changed, not because of a change of intent by (Zwozda), but because of the response of the Morneau Shepell intake agent, who switched to the new 'Fort McMurray fires' scripting. There was no indication in the absence report of (Zwozda's) sickness or inability to perform work." Reference: Suncor Energy and Unifor, Local 707-A. Francis Price — arbitrator. Will Cascadden for the employer. Drew Blaikie for the employee. Feb. 28, 2018. 2018 CarswellAlta 379 Guard should be provided with 'last opportunity': Arbitrator < 'Fraudulent' sick-leave pg. 1 < Keys to inmate pg. 1

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