Canadian Labour Reporter

7 Canadian HR Reporter, a Thomson Reuters business 2018 CANADIAN LABOUR REPORTER ARBITRATION AWARDS trainee, Laurie Goodram, on that day. When they arrived, it was de- cided that Powell would remain inside the truck and fill out paper- work. Desantis and Goodram en- tered the homeowner's basement and investigated the problem. Because the area was cramped, Desantis hit his head and began swearing. When the washing machine was moved, the hoses became stretched and "whiteish" almost to the point of breaking, testified Goodram. Desantis should have un- hooked the pipes before mov- ing the washing machine, said Goodram. Desantis then retrieved an au- ger from the truck and brought it back into the house. The home- owner's vacuum cleaner was dam- aged by Desantis carelessly bring- ing in the auger, said Goodram. Eventually, Powell entered the home and told Desantis to go back to the truck and cool down. Af- ter the job was done, Powell sug- gested Desantis apologize to the homeowner for his behaviour. Desantis refused to apologize, said Powell. However, Desantis testified he did apologize to the homeowner. The homeowner contacted the city to inform them of the inci- dent, but she said she didn't want to lodge a formal complaint. Desantis was suspended on June 23. On June 29, an investigation meeting was held, and on July 12, Desantis' employment was termi- nated. The union, Calgary Civic Em- ployees, Local 37, CUPE, grieved the decision on July 14, and ar- gued termination was too harsh, especially for a 15-year employee. The city countered and referred to two previous suspensions (for unauthorized absences) on his record, which constituted proper progressive discipline. After Desantis was let go, he went to Powell's home and threat- ened to "go postal" in response to the firing, and said he might com- mit suicide, testified Powell. The city informed Calgary police, who visited Desantis and reported that they didn't believe the matter was serious enough to warrant further investigation. The arbitrator, David Tetten- sor (backed by board member William Armstrong, but opposed by Graham Mahy) upheld the grievance and ordered the city to substitute the termination for a two-week suspension and award damages. "Taking all of these circum- stances into consideration, I con- clude that the termination of a 15- year employee, with a discipline record relating to unauthorized absences, for one incident of be- ing emotional, agitated and pro- fane in front of a customer, is ex- cessive. In my view, it falls outside the reasonable range of employer responses," said Tettensor. However, the arbitrator also ruled that "the employment rela- tionship is no longer viable." "Given these findings that the threats were made, coupled with (Desantis') denial that he made them, I conclude that the city's loss of trust in (Desantis), which is an important component of this employment relationship, was justified. Damages are awarded in lieu of reinstatement," said Tetten- sor. The fact that no formal com- plaint was lodged by the home- owner could not be considered a mitigating factor, said the arbitra- tor. "The evidence of Powell, Goodram and (foreman Craig) Bond shows she was clearly not comfortable with (Desantis') con- duct in her home." Reference: Corporation of the City of Calgary and Calgary Civic Employees, Local 37, CUPE. David Tettensor — arbitra- tor. Rebecca Andersen, Avril Fisher for the employer. E. Wayne Benedict for the employee. Aug. 7, 2018. 2018 Carswel- lAlta 1616 After termination, employee threatened to 'go postal' < Washing machine pg. 1 the standard of 9.8 stops per hour (SPH) and he was given a 30-day probation period to complete this requirement satisfactorily. But on Oct. 27, Canpar advised Scrivo that he had not met the SPH standard and he must return to the Montreal terminal. After he returned to the Mon- treal terminal, Scrivo's new hours were less than he had before as he did odd jobs only. And Scrivo discovered the Montreal route that he first in- quired about was still being run — despite Canpar's contention it would be cancelled — and it was driven by a junior employee. The union, United Steelwork- ers (USW), Local 1976, filed four grievances on Scrivo's behalf and alleged the employer didn't allow a legitimate bumping request. The union relied on article 5.3.4 of the collective agreement, part of which read: "Whenever there is a permanent abolishment of an employee's route, the follow- ing procedure shall apply: The employee on the route shall be entitled to select any route of his choice provided that the route is being done by a junior employee." The agreement also gave a short timeline of two or five days for a bumping employee to ex- ercise those rights. Because Sc- rivo believed the Montreal route would be abolished, he instead chose the Boisbriand route in- stead. As well, argued the union, no- where in the collective agreement under bumping rights did it speci- fy a 30-day probation period. Arbitrator Graham Clarke agreed and upheld the grievance. "Canpar violated the collective agreement and specifically Sc- rivo's bumping rights. The appro- priate remedy is to award Scrivo compensation and order a fresh bumping process." Proper information must be provided to Scrivo, said Clarke, before the new bumping exercise can begin. "Scrivo is entitled to decide whether to bump the more junior employee at the Montreal termi- nal who continues to drive a num- bered route. Canpar is ordered to disclose to the Steelworkers the number of hours that employee has worked on a daily, weekly and monthly basis, so that Scrivo can make an informed decision," said Clarke. "Alternatively, Scrivo can de- cide to bump into another route at a different terminal, provided he has the requisite seniority. Re- gardless of Scrivo's choice, there will be no probationary period at- tached to the new route. Canpar never negotiated this condition for bumping situations." As well, Scrivo was ordered to receive "compensation for any difference between the sums he earned and what he would have earned had he been driving a reg- ular route," said Clarke. "This compensation includes reasonable overtime which will be calculated based on the over- time Scrivo earned during the last two full years when driving his own route. The period covered by this compensation starts from the date of his displacement to the Boisbriand terminal to the date he bumps into a new position," said Clarke. Reference: Canpar Courier and United Steelworkers (USW), Local 1976. Graham Clarke — arbitrator. C. S. Perron for the employer. N. Lapointe for the employee. Aug. 7, 2018. 2018 CarswellNat 4104 < Bumping rights pg. 1

• Cover