Canadian Labour Reporter

7 Canadian HR Reporter, a Thomson Reuters business 2018 CANADIAN LABOUR REPORTER ARBITRATION AWARDS leave. Graham wanted to be off work for five days, beginning on April 30. The form was returned and Bouchier asked Graham for a more detailed reason for the ab- sence. But Graham refused to give more information, other than it was to support a family member who lived out of town. During an April 16 meeting, it was determined Graham needed to ask for family-caregiver leave, which required medical proof that the family member was suffering from a "serious medical condi- tion." Graham said the family mem- ber didn't have a "serious" condi- tion but that he still wanted to take family-caregiver leave. On April 25, Brett Demers, HR superintendent, wrote an email to Denis Cloutier, customer service and technical superintendent: "If he is now requesting a different leave under the ESA (Employ- ment Standards Act), please have him confirm which one so that the company can look at the require- ments of that leave and let him know that otherwise we are not able to approve his leave for next week." Cloutier met with Graham the following day but Graham refused to submit a new form. Graham said he would submit a doctor's note after his leave was completed. On April 27, Cloutier delivered another letter to Graham from Demers: "David, this letter will confirm that we require a written request for your family-caregiver leave and a medical certificate as indicated in the guidelines." Graham was warned that his leave would not be approved if he didn't complete a new form and if he didn't show up for work, he would be considered AWOL (ab- sent without official leave). About 20 minutes later, testi- fied Cloutier, Graham visited his office and claimed the company was engaging in harassment and he would take the matter up with the labour relations board. Graham didn't show up for work the week of April 30. When he returned to the yard on May 7, his employment was terminated. "Your actions have shown a complete disregard to everyone who got involved in trying to manage the situation and ultim- ately to the company. Further- more, not only were you AWOL, you have shown that we are not able to trust you to be forthcom- ing and honest," said the letter of dismissal. Graham did have a doctor's note that day, but it was con- sidered too late. As well, another letter was produced at the arbitra- tion hearing. The union, the United Steel Workers (USW), Local 1-2010, grieved the decision. Arbitrator Tatiana Wacyk dis- missed the grievance. "Although advised that, in the absence of a written-leave re- quest, he was to attend at work the week of April 30, 2018, and that he would be considered AWOL if he did not, (Graham) chose to absent himself without providing the written request. Accordingly, I find (Graham) was absent without permission, for reasons that were not beyond his control." Because Graham didn't pro- duce the medical forms "as soon as possible," as required under the ESA, he didn't meet the proper re- quirement for leave to be author- ized. "From April 16, 2018, when ad- vised a medical certificate was ne- cessary to qualify for family-care- giver leave, until April 27, 2018, when he left for his leave, to pro- duce the certificate, he failed to do so," said Wacyk "As set out above, (Graham) has not met the requirements to qualify for family-caregiver leave. As a result, he is not entitled to the section-74 protections afforded to employees who are exercising a right under the act," said Wacyk. Reference: Ryam Tembec and United Steel Workers, Local 1-2010. Tatiana Wacyk — arbitrator. Michelle Henry for the employer. Jim Fyshe for the employee. Oct. 10, 2018. 2018 CarswellOnt 16678 reprimand. She also attached a letter of apology to the note. After further discussion, man- agement decided to suspend Smith for three days. "This behav- iour will not be tolerated. Any fu- ture occurrence will result in ter- mination of employment," said the letter written by Stan Rice, interim executive management. In September, Marie Bruce, manager of support services and information services, returned from vacation and was presented with five complaints about Smith's behaviour during Bruce's time off. A meeting was held on Sept. 19 and Smith was asked about the various complaints. She didn't apologize for anything, according to testimony. The first complaint was from Leilani Oscaris, receptionist and clinical office assistant, about bullying behaviour. When asked about it, Smith responded, "That was Lanie and I did bully her." Another complaint alleged Smith advised a patient about a doctor of the clinic passing away, despite being told by management the doctor's death was supposed to be held in confidence until the family had posted an obituary no- tice. The third complaint was about a lab requisition that Smith cre- ated, even though receptionists were not allowed to create them, only doctors or nurses . A digital trail was shown as clear evidence Smith created the document. Smith initially denied making the document during a meeting, but eventually she promised not to do so again. The final two complaints were about disrespectful and aggres- sive behaviour toward other clinic employees. After the meeting, Smith was fired. "Disrespectful, aggressive behaviour is a violation of the per- sonal conduct policy and will not be tolerated," said the letter. Smith and the Canadian Union of Pub- lic Employees (CUPE), Local 974, immediately grieved the decision. At the time, Smith was the local union president. Arbitrator Anne Wallace (backed by fellow board member Eric Sarauer but not by Dolores Douglas) dismissed the grievance. "Smith had a prior record of discipline for insubordination by refusing to follow employer policy with respect to the EDOs and for insolence in the use of abusive and disrespectful language towards her manager and the employer. Smith had been warned that ter- mination would result if the be- haviour continued. The nature of Smith's conduct was such that the bond of trust with the employer was so fractured that no amount of corrective or rehabilitative measures could have restored that bond," said Wallace. As well, her attitude during the September meeting proved "Smith did not frankly acknowl- edge that any of her behaviour was wrong, that she understood why it was wrong, or that she was sorry for what she had done," said Wal- lace. "Often between a suspension or termination and the arbitration hearing, a grievor comes to un- derstand and accept the inappro- priateness of the behaviour that resulted in the discipline. (Smith) admitted less at the hearing than she had at the meeting in Septem- ber 2016. (Smith) gave no frank acknowledgement that any of her behaviour was wrong, no indica- tion she understood why it was wrong, and no indication that she was sorry for what she had done." Reference: Saskatoon Community Clinic and Canadian Union of Public Employees, Local 974. Anne Wallace — arbitrator. Leah Schatz for the employer. Janice Janzen for the employee. May 8, 2018. 2018 CarswellSask 459 < Complaints pg. 1 Worker 'chose to absent himself ' without consent: Arbitrator < AWOL pg. 1

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