Canadian Labour Reporter

September 3, 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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8 Canadian HR Reporter, a Thomson Reuters business 2018 September 3, 2018 ARBITRATION AWARDS payroll deductions. Campbell en- rolled in the course in October at the local Great Plains College. In August 2016, Campbell began work at the Meadows Swift Current Long-Term Care Project (after the Swift Current centre closed), which was a long-term care facility. The first complaint about Campbell was received in late Au- gust, after a fellow CCA noticed Campbell didn't properly wash residents. After a meeting with Michelle Aldag, manager, a letter of expectations was presented to Campbell on Sept 22. During a shift on Sept. 28, a CCA testified she noticed several incorrect actions taken by Camp- bell including not mincing food for residents, serving chili that was too hot, being rough with a resident and not seeing Campbell wash her hands as per regulations. A food-service worker also no- ticed the infractions that shift. On Oct. 10, another CCA no- ticed many tasks were not done over the night shift, despite a check-list filled out by Campbell that said all tasks were completed. Schlamp filed a complaint later that day. Leanne Jackson, CCA, relieved Campbell at 7 a.m. that morning and heard from her that some things weren't finished because she fell asleep. As well, Jackson heard from a resident that calls were ignored. Jackson also filed a complaint. On Oct. 11, Campbell received a 40-hour unpaid suspension. She was also demoted to an environ- mental, laundry and food services worker position, which involved fewer hours per week. Campbell was notified the de- motion was temporary, until she could pass the CCA course. How- ever, Campbell testified that she was not aware of this stipulation. The Service Employees Inter- national Union (SEIU) grieved the disciplinary actions on Oct. 14 and 25. By demoting Campbell to the non-CCA position, she was ineligible to complete the final part of her CCA course — which was prior learning assessment recognition (PLAR) that involved observation and testing while on the job. Since she was not working as a CCA, the PLAR component could not be met and Campbell didn't apply for it. The union argued Campbell should be compensated for the loss of income due to the demo- tion (which it said was two-thirds of $20,000) and be reinstated to the CCA position to complete the PLAR. Arbitrator Neil Robertson (backed by fellow board member Reg Padbury, but dissented by Andrew Huculak) upheld the first grievance. "While recognizing that neglect of duty and poor work performance are not acceptable, especially given the nature of this workplace, I would categorize the incidents which supported disci- pline as less serious offences." "Remedial consequences fo- cusing on improvement would have been more appropriate at this stage. I would therefore al- low the grievance and substitute a formal reprimand for the miscon- duct," said Robertson. However, on the second griev- ance, the arbitrator dismissed it and said the punishment was "ap- propriate and reasonable." "(Campbell) had demonstrated herself to be unsuitable to contin- ue in the position of a CCA. Given the alternative of dismissal, the demotion to a less responsible po- sition could be viewed as lenient. I would, therefore, dismiss this grievance," said Robertson. In his dissention, the demotion was "mean spirited and grossly ex- cessive," said Huculak. "I would have placed a reason- able timeframe on the grievor's demotion from her continuing care aide position, returned her at the end of that period to her for- mer position and allowed her to complete her course in the work- place in the same manner she would have prior to the discipline being imposed," said Huculak. Reference: Saskatchewan Health Authority and Service Employees International Union. Neil Robertson — arbitrator. Jana Linner for the employer. Larry Dawson for the employee. July 23, 2018. Demotion 'mean spirited and grossly excessive': Arbitrator < Health-care worker pg. 1 in September to discuss his fu- ture workload. D.M. was given a reduced workload, that included 12 hours of contact time per week with students. His doctor had rec- ommended this measure be taken because of "his problem with so- cial interactions." But in January 2014, after a con- flict with another instructor at NBCC, D.M. was suspended for three days. He was advised by the employer to have his doctor fill out a return-to-work form before returning. D.M. did so but when he was presented with a return-to-work plan by the college, he refused to sign it because it had an end-date of April 30, 2014. D.M. also said he was not comfortable attending regular meetings because it usual- ly resulted in increased stress. On May 9, D.M. wrote an email to Martin, after they had a meet- ing to discuss his fall-term work- load. The proposed load was too much, he wrote, and D.M. felt "totally caught off-guard" by Mar- tin's proposal. D.M. again wrote an email af- ter Martin lessened his lab time to six hours. "My requests for ac- commodation were ignored then and they are being ignored now. I will do as I am told, but this time if things go badly, it will be on you," wrote D.M. Further meetings were held in 2015 to update the accommoda- tion work plan, but neither side could fully agree. D.M. continued his schedule but management requested he get his doctor to again fill out an up- date to the temporary accommo- dation plan. A response was provided by D.M.'s doctor on Nov. 11. How- ever, after a Jan. 11, 2016, meeting between D.M. and Martin, further information was requested from D.M.'s doctor. Beginning from May, the em- ployer sent various meeting re- quests to D.M., but they were all refused. On July 14, Martin wrote an- other message requesting a meet- ing. "Sorry, Bruce, my summer is completely booked," wrote D.M. in response. But on July 25, after one final request was ignored, D.M. was dismissed. On Aug. 8, the union, the New Brunswick Union of Pub- lic and Private Employees (NBU- PPE) grieved and argued NBCC failed to accommodate D.M.'s dis- ability and it said he was camping throughout July and had "spotty internet service." Arbitrator Michel Doucet agreed and ordered D.M. reinstat- ed with the termination substitut- ed for a one-month suspension without pay. As well, D.M. must undergo "professional counselling for stress management and anger control" and provide "objective medical assessments of his limit- ation and restrictions" when re- quested by the employer. But D.M. wasn't given carte blanche to continue his behaviour "(D.M.) is hereby advised that his failure to cooperate with the em- ployer as indicated above could result in severe disciplinary action up to and including discharge. If the employer so chooses, it may issue a letter to that effect to the grievor for inclusion in his per- sonnel file," said Doucet. "(D.M.) does have a 'sharp pen' when he writes emails to his supervisors and it would be judi- cious of him to ponder about what he is writing before sending out messages. I also find that on some occasion he has expressed con- tempt for management. However, he seems to be an effective in- structor, at least there was no evi- dence to the contrary submitted at the hearing," said Doucet. "If he can demonstrate that he can get over his bitterness and an- ger, he can certainly be an asset to the employer." Reference: New Brunswick Community College, Saint John Campus and New Brunswick Union of Public and Private Employees. Michel Doucet — arbitrator. Chad Sullivan, Lara Greenough for the employer. Sophie Landry Mockler for the employee. Aug. 8, 2018. 2018 CarswellNB 304 < New Brunswick teacher pg. 1

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