Canadian Labour Reporter

January 21, 2019

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 2019 January 21, 2019 ARBITRATION AWARDS 8 Another employee then broke up the scuffle. Araia immediately went to Chris Helary, operations supervi- sor, to report the incident. He told Helary that Simpson threatened to "break his face" and Araia had bruising on his face while he spoke with the supervisor. Trevor Alway, Loomis' opera- tions manager for southern Al- berta, then investigated the inci- dent. On Sept. 5, Alway decided to dismiss both employees. "It is the company's position that you have committed an act of workplace violence. Workplace violence can- not and will not be tolerated. As such, your business agreement is being terminated for cause ef- fective immediately," he said in a letter to Araia. The union, Unifor, Local 4050, grieved the decision and argued Araia was not the original aggres- sor and his actions constituted self-defence. As well, Jesus Morra, owner- operator, testified that the pre- vious week before the incident, Simpson mocked Araia's English accent and he also committed a racist tirade against Araia. Arbitrator Richard Hornung upheld the grievance and ordered it to be substituted for a 30-day suspension and for Araia to be made whole. "I am of the view that dismissal of (Araia) was too severe a penalty given (his) past record; good performance and fully con- sidering the role he played in the same. I have also taken into con- sideration the fact that (Araia) followed company policy in im- mediately seeking out Helary after the fight to report the incident as required." Araia's previous record with the company was looked upon favour- ably by Hornung in his decision. "(Araia) was a good employee with 10 years of service. There was no prior record nor any discipline assessed against him or any prob- lem that he was involved in during that period. The actual physical violence was an isolated incident in the employment history of (Araia)," said Hornung. "As set out above, I have con- cluded that (he) was provoked by Simpson. His response in the altercation was a momentary ab- erration due to strong emotional impulses and was not pre-mediat- ed. (Araia) was a good employee." And the brief fight was almost completely the fault of Simpson, according to the arbitrator. "It is apparent that Simpson was guilty of workplace violence in three notable ways prior to blows being exchanged on the day in question: he threatened to 'break (Araia's) face'; he verbally abused (Araia) by swearing at him, insulting his language and using condescending language; and, he purposely butted (Araia's) forehead with the brim of his cap and then struck him on the shoul- der which ultimately ignited the altercation. Furthermore, the abu- sive conduct and language which Simpson visited on (Araia), in the previous incident described by Morra, self-evidently constituted provocative workplace violence and could serve no other purpose than an attempt to provoke (Ara- ia)," said Hornung. However, the self-defence argu- ment was rejected by Hornung. "(Araia)walked toward Simp- son and engaged him in a discus- sion which was aggressive on both sides. Plus, he chose not to walk away from Simpson as he had just the week before. Although he was provoked, that fact does not, in and of itself, exonerate or com- pletely excuse (Araia's) conduct" said Hornung Reference: Loomis Express and Unifor, Local 4050. Richard Hornung — arbitrator. Flora Poon for the employer. Oct. 24, 2018. 2018 CarswellAlta 2665 successful candidate "must have a provincial trade qualification (Red Seal) in carpentry with consider- able experience in a commercial/ institutional environment." When he wasn't chosen, McK- enna and the union, the Canadian Union of Public Employees (CUPE), Local 1775, grieved. "I Donald McKenna, the most senior candidate feel I was not given the maintenance worker 1 (carpenter) position as per article 17 promotions and staff changes," he wrote in the grievance. As well, alleged the union, the posting was "arbitrary or discrim- inatory" and, therefore, it violated the collective agreement. However, Wendy Bernier, di- rector of human resources, said the employer couldn't verify in- formation provided by McKenna during the application process, so it was unable to offer him the job. At one of the companies refer- enced by McKenna, the parties contacted barely remembered him working there, while another one failed to provide a good ref- erence because it said McKenna only worked intermittently there. During a Jan. 30, 2018, griev- ance hearing, the employer re- ceived three more names from McKenna. One reference had al- ready been spoken to and the oth- er two reference companies were not listed on his resumé. Two further reference names were provided by McKenna, but one had already been contacted and another one was listed as a homeowner, which the employer said didn't qualify it as a proper reference. Arbitrator George Filliter felt the school branch violated the col- lective agreement and ordered the position to be reposted. "The board is of the view the employer was within its rights to determine the requisite qualifica- tions of this position but, in this case, it did so in an ambiguous manner. This ambiguity was likely a factor for the inadequate level of information found in the applica- tion of the grievor," said Filliter. "The board concludes the stat- ed qualification 'must have a pro- vincial trade qualification (Red Seal) in carpentry with consider- able experience in a commercial/ institutional environment' does not require a candidate to estab- lish his/her experience was in the carpentry trade." As well, the use of the word "considerable" is arbitrary and it goes against the collective agree- ment, according to Filliter, and "the employer had an inconsistent interpretation of this word." Testimony from two manag- ers contradicted what the school branch was looking for, said the arbitrator. "When one compares the testimony of (HR officer Jenni- fer) Muncaster to the testimony of (property coordinator Fred) Horrelt, there is an obvious incon- sistency in expectations as to what 'considerable' experience means. Whereas Muncaster was looking at length of experience, Horrelt testified he focused on the nature of the work rather than the dura- tion of the experience. Given the inconsistent and arbitrary defini- tion of 'considerable,' the board finds it is inappropriate to expect (McKenna) to fully appreciate the meaning of the stated require- ment of the employer." However, McKenna was also to blame for what happened during the posting process, said Filliter. "The onus is on (McKenna) to prove his qualifications, and the employer is not required to do their own investigation. Even though the board concludes the stated qualification is both ambig- uous and arbitrary, the grievor did not provide sufficient evidence to allow the board to conclude he possesses the qualifications." Reference: Public Schools Branch and the Canadian Union of Public Employees, Local 1775. George Filliter — arbitrator. Ryan McCarville, Sean Corcoran for the employer. Lori MacKay for the employee. Dec. 21, 2018. 2018 CarswellPEI 116 Both sides found at fault in flawed job-application process < P.E.I. school pg. 1 < Truck driver pg. 1 'Momentary aberration' caused aggression: Arbitrator

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