Canadian Labour Reporter

April 8, 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 April 8, 2019 ARBITRATION AWARDS a.m., the package was discovered to hold liquor and the RCMP were called in. It held 24 cans of beer, six tall cans of beer, four large bottles of beer, one bottle of hard liquor and two cartons of wine. No charges were ever laid by the police. Richardson attended an initial meeting the following day with El- ske Canam, director of social pro- grams, and two others. Further meetings were held and on June 13, Richardson was advised the YHSSA was considering rejecting her employment on probation. Richardson wrote a letter on June 17 that said: "I have taken steps by way of reaching out to EFAP (employee and family as- sistance program), and I continue to use that resource to learn how best to cope and manage with workplace stressors. I am willing to explore other coping mecha- nisms that are healthier and more sustainable than the ones I have relied on in the past." She resigned via email on June 30 and on July 4, the employer ter- minated her. However, on July 5, she advised YHSSA that she want- ed to rescind her resignation. The employer rejected it and on July 6, the Union of Northern Workers (UNW) grieved the ter- mination. Richardson testified that she had previously smuggled in alco- hol via carry-on luggage. She said drinking alcohol was a "mecha- nism to cope" with the new job, which was overwhelming at times. Richardson commonly had three or four drinks per night. Richardson said she didn't feel there was any support available in the small village and the doc- tor only was available once every two weeks. She testified she didn't want to take up his time, consid- ering there were so few options available to local people. The employer countered and said the onus was on Richardson to seek help for any disability and because she didn't request help for alcohol dependency, YHSSA wasn't aware of a problem. However, said the union, it was up to the employer to reach out to the employee and inquire about a possible disability, especially after Richardson admitted she used al- cohol to cope. Arbitrator John Moreau agreed: "I find and declare that the employer's failure to obtain a medical prognosis on the grievor about a possible alcohol depen- dency condition prior to rejecting the grievor on probation amounts to a breach of the duty to inquire on the part of the employer and discrimination under article 3.02 of the collective agreement." No damages were ordered due to the "premeditated act of charg- ing the transportation of alcohol to the YHSSA account is inexcus- able and a clear breach of trust going to the root of the employ- ment relationship. It cannot be condoned. An award of damages in any amount would have that ef- fect," said Moreau. "(Richardson's) admission from the outset that she needed alcohol to cope and yet could still carry on and do her job should have been a red flag to the employer that the grievor's circumstances required further investigation. The ab- sence of taking any further steps to determine if the grievor had an alcohol problem, such as obtain- ing a medical prognosis, amounts in my view to a breach of the duty to inquire on the part of the em- ployer and discrimination under the collective agreement," said Moreau. Reference: Yellowknife Health and Social Services Authority and Union of Northern Workers. John Moreau — arbitrator. Maren Zimmer, Sandra Jungles for the employer. Feb. 19, 2019. 2019 CarswellNWT 7 shut, trapping her arm and leg. She was let go after he opened the door. The following day, Ran- kine submitted a handwritten statement to the TTC about the incident: "He then released me from the doors and said, 'Do you remember the time when your boyfriend or guy friend swore at me?' In June of this year, my boyfriend at the time and I were riding the bus. My friend was top- less. As we were exiting, the driver informed us that he (my friend) couldn't be on the bus without a T-shirt. They had an exchange of words and that was that." On Oct. 16, manager Adnan Molvi, asked McDonald for a meeting to discuss the incident. McDonald later filled out an occurrence form stating: "Black woman got her front foot stuck in the door as it was closing. I apologized to her, let her know the door was closing already, and said sorry again. I also let her know that I was cold, which was why I closed the door." McDonald also said he left the station after the incident with an empty bus after Rankine began swearing at him. On Oct. 20, McDonald was terminated. At the time, he was subject to a last-chance agreement (LCA) stemming from a previous negative interaction with a passenger in 2017. The Amalgamated Transit Union (ATU), Local 113, grieved the firing. It argued that because Mc- Donald was not offered union representation during the first meeting, the termination should be voided. Arbitrator Lorne Slotnick disagreed and dismissed the grievance. "I find that McDonald deliber- ately closed the bus doors while Rankine was boarding, in repri- sal for the earlier encounter and in violation of his last-chance agreement. I further find that he was not improperly denied union representation at the Oct. 16 meeting." As well, the evidence of Rankine was more credible than that of McDonald's, according to the arbitrator. "Rankine, whose evidence is that she did not file a complaint about the first incident or any oth- er complaint with the TTC until this one, had no reason to file a complaint against McDonald un- less the events happened largely as she described. I find her testimo- ny more credible than McDon- ald's. As for the union's question about why McDonald would close the door and admit he was doing so as a reprisal when there were other passengers witnessing, that is no easier to explain than why he would do it at all. Sometimes there is no rational explanation for a person's actions," said Slotnick. And there were "significant flaws" in some of the driver's testi- mony, said Slotnick. "(McDonald) did not file a report on the incident until after Rankine's complaint came in, and Molvi raised the issue with him. (McDonald) testified he did not report the incident because there was no injury, but the evidence is that he has filled out occurrence reports previously where there has been no injury. (McDonald) acknowledges that he drove the bus away without any passen- gers, yet he did not report this at the time, nor did his occurrence report say anything about tak- ing the bus out of service," said Slotnick. "Instead, rather misleadingly, his report says he returned to the bus from the bathroom, and 'I drove after that,' leaving the im- pression that everything was nor- mal when, in fact, he had left pas- sengers at the stop. He testified that the passengers left the bus while he was in the bathroom and told him to drive on without them because Rankine was being abu- sive. I find this improbable." Reference: Toronto Transit Commission and Amalgamated Transit Union, Local 113. Lorne Slotnick — arbitrator. Jeff Rochwerg for the employer. Adam Webb for the employee. Feb. 13, 2019. 'Significant flaws' in operator's testimony: Arbitrator < Closing door pg. 1 < Dry area pg. 1 Social worker had 34 cans, bottles of beer sent via plane

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