Canadian Labour Reporter

June 3, 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 HAB Press business 2019 June 3, 2019 ARBITRATION AWARDS he was late because he fell in the parking lot. However, no snow was seen on Neufeld's clothes that day, testi- fied Yu. Other employees also said they had seen Neufeld at work that day but there was no snow on his clothing and he didn't exhibit any limping. On Jan. 10, Neufeld showed up early for his 8 a.m. shift and advised Kirby Pardely, assistant manager at the Jasper Gates loca- tion, that he couldn't work his shift that day. Neufeld also booked off Jan. 11. In a meeting on Jan. 15 to discuss the recent string of lateness and absences, Neufeld gave conflicting stories to explain his actions. During a Jan. 29 termination meeting, Neufeld produced medi- cal information that said he suf- fered from depression, although the details were scant. Nonethe- less, he was terminated. The letter cited his alleged dishonesty as one of the reasons for dismissal. Store video footage of the park- ing lot did not show Neufeld fall- ing in the parking lot, said the em- ployer. The union, the United Food and Commercial Workers Canada (UFCW), Local 401, grieved and asked for $40,000 in damages, in addition to Neufeld being rein- stated. Neufeld suffered from depres- sion and mental-health illnesses dating back to 2015, when he was homeless for a time. As well, he also worked at a restaurant at that time, which may have contributed negatively to his general health, said UFCW. When Neufeld fell, union rep- resentative Rick Schneider said he hit his head which may have con- tributed to his cognition. Neufeld was easily confused and forgot dates, said Schneider. On Dec. 21, 2015, Neufeld fell in the parking lot on his way into work, he testified. He was diag- nosed with a swollen ankle from the fall and he didn't remem- ber any details of it because he blacked out, said Neufeld. He also fell on his way to work on Jan. 9, 2016 said the union. As well, he didn't remember much about the day that the ba- nana bread was ruined. Arbitrator David Tettensor upheld the grievance and ordered him reinstated but without the monetary damages awarded. "I am prepared to give (Neufeld) the benefit of the doubt and conclude that some of his in- consistent statements were the result of some confusion and not intentional. That said, I also conclude that at times (Neufeld) was careless with the truth. His testimony about his recollection of mixing the banana bread is a stark example of this. A significant factor in the decision to terminate (Neufeld) was the conclusion that (Neufeld) was not truthful about falling on Jan. 9, 2016. The evi- dence shows (Neufeld) was truth- ful about this." Some of the blame for his perfor- mance could be given to Neufeld's second job, said Tettensor. "Working until midnight at the Olive Garden and then starting a shift at Safeway at 4 a.m. could be a reasonable and logical expla- nation for (Neufeld) being late, absent or wanting to leave a shift early. Even though he had done this for some years, it would not be surprising that this would catch up with him; we all lose stamina and the capacity to work long hours as we age, and working as much as 16 hours per day would be difficult for anyone." Reference: Sobeys Safeway Operations and United Food and Commercial Workers Canada, Local 401. David Tettensor — arbitrator. Feb. 18, 2019. 2019 CarswellAlta 593 Welley Lamadine had worked for the employer since 2007 and was working as a room attendant. On May 20, 2018, she cleaned a room and circled it as done on the checklist. However, on June 2, another attendant noticed a nest with two recently hatched pigeons and two eggs. The incident was reported to Melanie Taylor, executive house- keeper, who researched via the internet the incubation period for pigeons. She found out that it was 17 to 19 days. Two other attendants were giv- en discipline for not checking the balcony, as was Lamadine on June 7. Lamadine was terminated as it was her seventh violation under the newly implemented letter of understanding (LOU) 8, entitled "Discipline without punishment," which was a part of the collective agreement. It outlined four steps for disci- pline, with the final step resulting in automatic termination. Lamadine's previous violations were for being late, poor perfor- mance, and not showing up for a shift and not advising anyone. On April 6, 2018, Lamadine had a meeting with management to discuss recent complaints by coworkers about her negative interactions. As it was her sixth disciplinary notice, Lamadine was given a paid decision-making leave on April 17 and told the next one could lead to termination. The Saskatchewan Joint Board, Retail, Wholesale and Depart- ment Store Union (RWDSU) grieved on June 18 and argued the punishment was too strong de- spite the LOU which strictly set out what happened. Arbitrator Catherine Zuck agreed and took umbrage with Temple Gardens' interpretation of LOU 8. "It is the board's opinion that the words 'for an infraction' mean that the exact act must be speci- fied in the agreement between the parties in order to be binding on this board. It cannot be as gen- eral as 'something the employer regards as disciplinable,' which is the interpretation urged by the employer. Before both parties can freely agree to a specific pun- ishment, they must know what specific act will trigger that pun- ishment. Thus, in this case, for the board to be bound, the parties must have agreed that something like 'the failure to clean pigeon nests off a balcony' will result in termination, which they did not. This is especially so when there is evidence, as there is here, that not every employee who fails to clean pigeon nests off the balcony is ter- minated." Instead of termination, Zuck determined "the appropriate action for the grievor's failure to clean the pigeon nest off the bal- cony to be the informal discussion action of coaching. There is no evidence that simply reminding (Lamadine) to check and clean the balconies would not be sufficient to correct her mistake and pre- vent a reoccurrence." And the employer's past prac- tice in one case indicated that it didn't always resort to termina- tion for the seventh infraction, she said. "It is always open to the em- ployer, when faced with a par- ticular formal discussion action because of the number of previ- ous number and type of formal discussion actions, to avoid an unjust and unreasonable result in light of the circumstances by de- clining to treat the incident under the formal discussion actions. It could take an informal discussion action. The employer already did this once when faced with a situ- ation where the front desk em- ployee had six formal discussion actions and the only remaining formal discussion action available was termination." Reference: Temple Gardens Hotel and Spa and the Saskatchewan Joint Board, Retail, Wholesale and Department Store Union. Catherine Zuck — arbitrator. Edward Snetsinger for the employer. Ronni Nordal for the employee. Dec. 10, 2018. 2018 CarswellSask 638 Coaching suitable response to attendant's failure: Arbitrator < Pigeon's pg. 1 < Baker pg. 1 Dishonesty cited on dismissal letter given to employee

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