Canadian Labour Reporter

April 22, 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 22, 2019 ARBITRATION AWARDS she took four days off after her asthma flared up. On April 29, Chad Ku, the man- ager who replaced Sanders, again advised all employees not to wear scents or they would be disci- plined or terminated. But on May 3, Marcotte took more time off due to the asthma. Marcotte took further time off and her doctor wrote a note that said she would best benefit from a completely scent-free environ- ment. However, the corporate physi- cian reviewed the note and ad- vised Marcotte she would be able to return on May 24, which con- tradicted her own doctor's note that called for her to be off work until May 30. Marcotte didn't return to work on May 24 and she filed an official complaint alleging harassment from coworkers who continued to wear scents. A meeting was set for June 1, but Marcotte didn't attend. SaskPower then advised Mar- cotte that she was in a "no-pay" situation as she had used up all her vacation and sick time. On June 3, the corporate doc- tor wrote an email and urged Marcotte to assist "in all efforts to address the concerns brought for- ward." Marcotte was told to attend a June 10 meeting or it would be considered "gross misconduct" if she didn't. On June 9, Marcotte requested the meeting be held on a different site from the Fletcher Road office but the employer didn't budge from its original request. Marcotte didn't show up for the meeting. A dismissal letter was couriered to Marcotte later that day: "This letter follows multiple attempts to get you back into the work- place. On June 1, 2016, and twice on June 10, 2016, the corporation attempted to get you to report to work and all attempts were met with your refusal to cooperate and to follow such work direction. The company has deemed your behav- iour as culpable and unacceptable. Based on your multiple refusals to report to work, we have conclud- ed that your actions constitute gross misconduct." The union, Unifor, Local 649, grieved the firing and argued that Marcotte was pressured to return from a legitimate sick leave and her request to meet at a scent-free neutral site was ignored. SaskPower countered and said that because she refused a direct order to participate in an accom- modation meeting, the termina- tion was justified. Arbitrator Sheila Denysiuk dis- agreed and ordered the termina- tion be substituted with a one-day unpaid suspension. "Marcotte had no prior disci- pline. The misconduct, such as it was, was an isolated incident in her employment history. She relied on advice from her doctor, her psychologist and others, and though perhaps misguided in fol- lowing the advice, this is certainly a consideration in assessing the disciplinary response," said Deny- siuk. SaskPower overreached when it fired Marcotte, said Denysiuk. "The misconduct consists of one refusal in the context of a medi- cal leave arising from what would surely be viewed as a disability. It would be quite different if there were multiple refusals over a pe- riod of months. Surely, more seri- ous misconduct is required to jus- tify termination." "Although the refusal to attend the meeting is insubordination, it must be noted that Marcotte was respectful in her interactions with management in the lead up to the meeting and in her communica- tion with management through- out. There was no evidence of derogatory comments or insolent behaviour that would otherwise justify significant discipline." Reference: SaskPower and Unifor, Local 649. Sheila Denysiuk — arbitrator. Susan Barber for the employer. Gary Bain- bridge for the employee. Feb. 28, 2019. Tailor's restrictions included "no... pushing, pulling, gripping (or grasping) with right upper extremities," said an email from occupational and environmental safety and health disability case management coordinator. By the end of April, Tailor was "unable to do duties as an ultra- sound sonographer, may return to sedentary work," according to an update. Tailor then moved to long-term disability status on June 1, while she continued to recover. On Jan. 31, 2018, Tailor was eligible to return to work but only performing "light duties" for about eight to 10 weeks. On Feb. 13, she met with a physiotherapist to prepare for her return. During the meeting, she told the physiotherapist that she was rehabbing via treadmill and also performing cultural dances. In late February, Tailor emailed a health update to the manager of diagnostic imaging identified as "Zdanuk": "The aggravation in my wrist didn't subside overnight like it normally does and continued into the morning. I get random stabbing\shooting pain with cer- tain movements." Tailor's schedule was reduced to work two days a week. But in April, Zdanuk heard ru- mours that Tailor was performing cultural dances outside of work and the movements she did were not consistent with the pain she reported. Zdanuk viewed three videos on YouTube that were re- corded in March and April. Tailor was advised by the insur- er on May 7, that her LTD benefits were not being continued due to her no longer being disabled. She was told not to attend work and await further instruc- tions on when she could return. But on May 30, Tailor was termi- nated after the employer said she breached trust due to her dancing. The union, the Manitoba Asso- ciation of Health Care Profession- als (MAHCP), grieved the firing. Arbitrator Kristin Gibson up- held the grievance and ordered Tailor to be reinstated as of May 30 with full back pay. "The difficulty for me arises in considering whether the pain-free dance performances are incon- sistent with Tailor continuing to experience and report significant pain in doing her job as a sonog- rapher which, by all accounts, involved sustained pressure for periods of 30 to 45 minutes at that time in her recovery, and which was physically demanding in most respects. While I agree that the dance performances pres- ent a much different picture to a non-medically trained individual than the reports of pain continu- ing after Tailor's shifts at work, I do not feel able to conclude with- out medical evidence that there is the required degree of inconsis- tency to shift the onus to her," said Gibson. And throughout the rehabilita- tion process, Tailor did not hide anything, said the arbitrator. "I do not think the fact that Tailor disclosed her dancing to her health-care providers proves that she was medically cleared to dance or that the dancing was consistent with her reports of pain and difficulty performing her job in February, March and April of 2018 but I have already determined that the onus has not shifted to her for explanation. I do think that her disclosures likely functioned in her view as clear- ance — she was not told to dis- continue her dancing, she was en- couraged to be active and stay fit — and I also do not think that she was dishonest when she charac- terized it as clearance to her em- ployer," said Gibson. Reference: Winnipeg Regional Health Authority and Manitoba Association of Health Care Professionals. Kristin Gibson — arbitrator. Melissa Beaumont for the employer. Jake Giesbrecht for the employee. Oct. 28, 2018. 2018 CarswellMan 781 Supervisor viewed multiple videos of worker on YouTube < Dancing pg. 1 < Accommodation pg. 1 Employee's 'misconduct' consisted of one refusal: Arbitrator

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