Canadian Labour Reporter

March 25, 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 March 25, 2019 ARBITRATION AWARDS However, Ange didn't work that day and Nnorom said he received no such message from Joubarne. Joubarne also said his PDT (portable data terminal) wasn't working that day due to Wi-Fi sig- nal issues. Joubarne also claimed his PDT was crashed for the entire shift and when he requested the trailer to be moved to the loading dock, there were no spots avail- able. Joubarne apologized to Levengneux about the trailer be- ing left unattended for his entire shift. He blamed the mistake on inadequate training. After the interview, Leveng- neux felt that Joubarne wasn't be- ing truthful or sincere. Nnorom testified that he worked the same shift as Joubarne and at no time did he request help for moving a trailer to the dock, as was the protocol. Nnorom said it was the responsibility of a dis- patcher, especially one with as much experience as Joubarne, to ensure all trailers were accounted for. Joubarne was terminated on Oct. 13. Canada Post also cited previous discipline, including a one-month suspension. The union, the Canadian Union of Postal Workers (CUPW), grieved the firing and argued that because Joubarne was allowed to work for 10 days after the inci- dent, it was unjustified. And his apology after being interviewed showed remorse for his actions. Arbitrator Owen Shime dis- missed the grievance. "(Joubarne) has a disciplinary record including a one-month suspension in which he was cau- tioned that he was on the preci- pice of being discharged. In addi- tion, he has other discipline. I am unable to conclude the discharge was unjust and accordingly, the grievance is dismissed." There were multiple instances of misconduct on the day in ques- tion, said Shime, which justified the dismissal. "When (Joubarne) was inter- viewed, he made a number of false excuses: The PDT was not work- ing and he was not trained. (Jou- barne's) conduct in not securing the mail was a serious breach of his duties as a dispatcher and he did not aid his cause by initially attempting to evade responsibility and only apologized when it was readily apparent he was at fault. He stated he apologized because of the Wi-Fi connectivity which was a conditional apology and not full acceptance of respons- ibility. In these circumstances, I find (Joubarne) failed to verify the scanned unloading and left the mail unsecured in the yard, and was negligent or reckless and seriously breached his duties as a dispatcher. Also, he attempted to evade responsibility for his negli- gent conduct." "(Joubarne) was negligent in not ensuring the trailer got to the dock and was negligent when he left at 4 p.m. having scanned the trailer as unloaded while know- ing that the trailer was still in the yard and sealed which left the mail unsecured. He claimed that he thought the supervisor would look after it but he did not know when the supervisor's shift end- ed," said Shime. "Thus, it is conceivable that the supervisor's shift ended before 4 p.m. when (Joubarne) left and therefore his excuse the super- visor would look after it lacks merit. (Joubarne) at all material times failed to verify that the trail- er was unloaded which was his responsibility," said Shime. Reference: Canada Post and Canadian Union of Postal Workers. Owen Shime — arbitrator. John Mastoras, Peter MacTavish for the employer. Wassim Garzouzi for the employee. Feb. 25, 2019. of five that operated the site and all shared a common collective agreement. During a Nov. 22 meet- ing, the United Steelworkers (USW), Local 1-1937 and man- agement met to discuss a single seniority list between the five con- tractors. Shawn Nicholson, owner of Big Lake and IFC, opposed the single list and the meeting was described as "disorganized" with "lots of tension." Neuwirth attended the meeting and left with the impres- sion that Nicholson "would pull out if we didn't agree to split the seniority list." A union meeting was held on Dec. 2 and Neuwirth, who had held various union positions in the past, attended. Before the meeting, he received a phone call from foreman Dan Hyde, who asked, "Whose fucking side are you on?" Hyde later left "intoxicated messages for me on my phone throughout the evening of Dec. 2," said Neuwirth, who later filed a WorkSafe BC mental-health claim due to the harassment. On Dec. 3, Neuwirth was ad- vised by Hyde that work was to resume on Dec. 4, after a series of work stoppages due to weather. But Neuwirth told the foreman that he would take a stress day off and see his doctor. Neuwirth later said he would be able to attend work on Dec. 5, but the employer said he would need a doctor's clearance before he could return. After a Dec. 6 doctor's appoint- ment, during which he broke down in tears at the office, the doctor wrote a note: "Richard is currently unable to work under the circumstances at work until it has been resolved." On that same day, Neuwirth met the owner of the Weasel Creek logging operation, who of- fered him a position as grapple yarder operator. He accepted and worked with them until June 2018. Neuwirth remained off work with Big Lake during that time. On Dec. 20, he spoke with Me- lissa Flint, an employee of Global Total Care (the company used by both employers for illness man- agement services) to update his situation. On Jan. 15, Neuwirth texted Colin Shantz, who co-owned Big Lake and IFC, about a pos- sible return to work. Shantz said he would have to get a doctor's clearance first. Shantz testified he knew at that time that Neuwirth was working with another com- pany. However, Big Lake and IFC ter- minated Neuwirth on Feb. 7, de- spite a Feb. 8 doctor's meeting. He grieved the dismissal. The employer argued that because Neuwirth worked the same job at another company, his symptoms were not real. But the union countered and said his stress was due to union- management tensions, as well as the treatment from Hyde. Arbitrator Richard Coleman agreed and upheld the grievance. "I find that the worker did not abandon his position and was on an approved and medically bona fide leave throughout the relevant period, and that the dismissal was without cause. I find that the evidence does not support a find- ing that he went to work for the al- ternate employer on a clandestine basis, intending it to be a secret. Nor does it support the allegation that his symptoms were faked and he lied or mislead the employer and his treating physician. The objective facts show that he was open about the alternate employ- ment and that the work restriction was for Big Lake where he experi- enced the stressors which brought on the symptoms, but not else- where and that when he felt suffi- ciently recovered, he attempted to return to work at Big Lake." "By way of remedy, (Neuwirth) is to be reinstated retroactively," said Coleman. Reference: Big Lake Logging and United Steelworkers, Local 1-1937. Richard Coleman — arbitrator. Greg Heywood for the employer. Steven Rogers for the employee. Feb. 25, 2019. Stress caused by company environment, not type of work < Sick leave pg. 1 < Delivery truck pg. 1 Employee provided 'number of false excuses': Arbitrator

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