Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2018 November 5, 2018 ARBITRATION AWARDS collective agreement on work- place violence. MacLeod eventu- ally resigned on Jan 25, 2013. "There are days when I wish I never reported the incident in the first place as it was a more peace- ful place for me to work. Health- wise, I can no longer tolerate this type of negativity in my life, this type of bullying, and the lack of support is putting a strain on my coping skills," wrote MacLeod in her resignation letter. MacLeod alleged that some supervisors spread a false story about her arm being broken by her common-law husband, when it was actually broken during training, she said. As well, an FSCC supervisor sat in court during a hearing for domestic assault against her hus- band and texted details to other coworkers, MacLeod alleged. MacLeod said she was treated differently by four supervisors after she made the complaint against Paulette. As well, on one other occasion, MacLeod was forced to go to the male unit for occupational health and safety training and "froze" when she saw Paulette look at her from behind a glass window. On May 11, MacLeod said she was ordered by her supervisor, Doreen Schaefer, to go to the male wing of the prison to escort a fe- male inmate or she would be "ter- minated." And Paulette had been seen by MacLeod "at least a dozen times" when he went to the female wing to return meal pans. When she complained to Schaefer, she was told to "get over it," said Ma- cLeod. It was Schaefer who texted colleagues during the court ap- pearance, according to MacLeod. Arbitrator John Moreau dis- agreed and dismissed the griev- ance. "The grievor may have been subject to occasional taunting by her co-workers after the sexual harassment investigation was completed, such as for being ex- cused from having to escort fe- male inmates to the wet cells. But these kinds of comments are typi- cal of those that occur in any in- stitutional workplace and do not amount to bullying or violence within the meaning of 55.01 of the collective agreement." MacLeod's claim of not being protected by management was "unsupported by the evidence," said the arbitrator. "I find that (MacLeod) was in fact supported by the senior per- sonnel officer in the institution, (acting warden, Warren) Wil- lis, whose email to Schaefer of May 16, 2012, as well as the other events he outlined in his testimo- ny, demonstrates both his sensi- tivity and support for the grievor's circumstances," said Moreau. MacLeod's contention that Schaefer was texting during a court appearance was dismissed by Moreau. "The use of cellphones is pro- hibited while court is in session, making it unlikely that someone would risk texting while court proceedings are taking place," said Moreau. "Accordingly, (MacLeod's) al- legation set out in her letter of res- ignation that court room texting took place in order to spread ru- mours of the domestic assault with the purpose of causing the grievor harm is not, on balance, supported by the evidence ," said Moreau. Reference: Northwest Territories (Minister of Human Resources Government) and Union of Northern Workers. John Moreau — arbitrator. Michelle Theriault for the employer. Rebecca Thompson for the employee. Aug. 31, 2018. 2018 CarswellNWT 41 higher rate. When Mackintosh returned to work, Kanniappan was back work- ing at his original position, the lower-rated first-cook classifica- tion. Chefs generally worked in the office, mainly doing administra- tive duties, while first cooks were strictly stationed in the kitchen. A few weeks into his job, Kan- niappan was promoted by Mack- intosh via a form to cook/acting chef, even though that position was not formally identified in the collective agreement. Kanniap- pan testified that during his time as cook/acting chef he performed mainly chef 's duties, working in the office alongside Mackintosh. As well, he worked 12-hour shifts, not eight hours which were for cooks, which meant manage- ment viewed him as a chef, said Kanniappan. On April 23, 2014, Bill Laws, food-services manager, sent an email to Mackintosh, directing Kanniappan to "target and focus" on certain duties that included "office duties epay etc. 4 hours," and "making sure all records are up to date," among other admin- istrative duties. The email was CCed to two other supervisors. On May 12, a new operations manager took over and found there was some concerns about how Kanniappan was given more overtime that he was entitled to as a first cook. Mackintosh was asked why Kanniappan was being paid for 12-hour shifts while he was in the office, which was contrary to prac- tice. Mackintosh said it was Laws who had okayed the practice. When he was then asked on Aug. 7 about that, Laws said he au- thorized Kanniappan working in the office to help Mackintosh man- age his workload, but he hadn't au- thorized the 12-hour shifts. On Oct. 14, a complaint line heard from a worker that "Craig and Mani remain in the office for 12 hours each shift, socialize and remain on the computer, and eat food from the kitchen while they are in the office." This was an exam- ple of favouritism, said the anony- mous employee, and it was unfair. Management then held a meet- ing and clarified that Kanniappan was to conform to the original du- ties as a first cook, when Mackin- tosh is on site, and to "minimize the amount of admin work being passed off " to Kanniappan. On July 2, 2015, Kanniappan and the union, UNITE HERE, Lo- cal 47, filed a grievance after Kan- niappan felt that he wasn't being properly paid. But on Dec. 17, he was laid off and a note attached said, "full layoff — no recall." Arbitrator Andrew Sims found there was no formal promotion in the form from Mackintosh and therefore Kanniappan was not en- titled to being considered as a chef. "What it did, and what it was intended to do, was to formally record the arrangement where he would fill in for the chef/manager, about one week per month, being paid as a chef for those specific days but thereafter returning to the first cook's duties and rate of pay," said Sims. Despite Kanniappan acting as if he was a chef, he wasn't, said Sims but rather a personal aide to Mackintosh. "First and foremost, Mackintosh scheduled the griev- or to work a 12-hour shift, giving him overtime beyond that avail- able to the rest of the first cooks on shift. Second, it allowed him to stay mostly in the office with Mackintosh. This afforded a so- cial and a status advantage. Third, he did not have to cook, which the other first cooks had to do. All in all, this presented (Kanniappan) with a congenial and profitable ar- rangement," said Sims. The blame should be placed on Laws (who had left the company in 2014), according to the arbitrator. "I do find that the employer, due to the overly lax supervision of Laws, was not fair and reasonable in the application, administration and operation of the agreement." But Kanniappan was entitled to receive "damages for the grievor for the February to October per- iod at $2,500," said Sims. Reference: Dene West Limited Partnership and UNITE HERE, Local 47. Andrew Sims — arbitrator. Joyce Mitchell for the employer. David Mercer for the employee. Aug. 27, 2018. 2018 CarswellAlta 1860 Chef showed favouritism which was noted by other workers Comments 'typical' for institutional workplace: Arbitrator < Underpayment pg. 1 < Prison guard pg. 1

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