Canadian Labour Reporter

8 Canadian HR Reporter, a HAB Press business 2019 June 10, 2019 ARBITRATION AWARDS care manager, about what hap- pened. Evely Follet was in tears when she recounted the story. On Jan. 15, Evely Follet told two more managers about the joke and she said that it made her feel uncomfortable and it gave her a lot of stress. During testimony, Noseworthy said that Evely Follett's version of the story was incorrect and during the incident, it was R. who called her names. "You can't be calling her a fuck- er or a cocksucker," said Nosewor- thy to R. But on Jan. 17, Noseworthy was terminated. "Making such a vulgar state- ment to a coworker in the work- place is unacceptable. However, this statement was also made to a long-term care resident of a vulnerable nature. Multiple ac- counts advised that the resident was 'agitated,' and 'not herself ' the remainder of the day. In this situ- ation, you demonstrated a lack of dignity to both your coworker and the resident while making this in- appropriate, sexually aggressive statement," read the dismissal let- ter. Noseworthy had been previ- ously suspended for four months in 2017 (reduced to three months after an appeal) for "multiple in- cidents of inappropriate conduct and language." The Newfoundland and Lab- rador Association of Public and Private Employees (NAPE) union grieved the firing and argued it was excessive. But Eastern Health countered and said the incident happened less than three weeks after the previous suspension and Nose- worthy's behaviour had a negative effect on a "vulnerable" patient. Arbitrator James Oakley dis- missed the grievance. "The employer previously at- tempted to correct (Nosewor- thy's) behaviour by a disciplinary suspension and a return-to-work plan. (She) was directed to review materials and to be prepared to re- turn to work without repetition of the inappropriate conduct that led to her suspension. However, upon return to work, (Noseworthy) re- peated her inappropriate behav- iour. The employer was entitled to regard the incident of Jan. 9, 2018, as a culminating incident. In these circumstances, it would not be just and appropriate to reinstate (Noseworthy) in employment." Noseworthy's history weighed heavily against the possibility of reinstatement, said Oakley. "The prior discipline was the result of multiple incidents of inappropriate behaviour with residents, use of cellphone while working, falsification of docu- ments, delayed care and breaches of confidentiality. In particular, (Noseworthy) made inappropri- ate comments of a sexual nature to family members of residents, as noted in the letter of prior disci- pline. It was noted in the prior let- ter of discipline that (she) did not appear to show remorse or accept that her behaviour was inappro- priate. Therefore, (Noseworthy) has a significant prior disciplin- ary record for multiple incidents, including other incidents of inap- propriate conduct with residents. (She) should have known that the language used was offensive and inappropriate having regard to her prior disciplinary record and return-to-work program." Reference: Eastern Health and the Newfoundland and Labrador Association of Public and Private Employees. James Oakley — arbitrator. Emily Caines for the employer. Vina Gould for the employee. Jan. 30, 2019. 2019 CarswellNfld 198 O'Handley sent a crew to the tool house to collect Mardon and Brown at 5 a.m., but they were not there. Later that day, O'Handley called Mardon at 11:58 a.m. and told him two employees went to the tool house and found nobody there. Mardon replied and said he was there. But no vehicles were in the compound, indicating no employ- ee was on-site, said O'Handley. Mardon then said that Brown had left early but he maintained that he remained on-site. An investigation ensued and it was discovered that the time sheets for Brown and Mardon were false. However, a further review of the sheets showed that Brown left at 3:55 a.m., and that was the time that Mardon indicated he had left. During the investigation, Mar- don said that ever since April 24, 2017, he had experienced intesti- nal issues and that was why he left early as he was "in pain and (had) severe gastrointestinal distress" on that day. At the time of the incident, Mardon was operating under a last-chance agreement (LCA). "It shall be considered just cause for the termination of the employ- ment of Mardon," said the text, if he committed any further disci- pline-worthy actions. Previously, Mardon had been dismissed by CP on Nov. 23, 2017, for falling asleep on the job. Mardon was reinstated on Jan. 29, 2018, but this time he was sub- ject to the terms of the LCA. On March 13, 2018, Mardon was terminated for violating the LCA. The letter cited his "failure as a foreman to ensure an employee under your charge worked in ac- cordance with all applicable rules and regulations as evidenced by said employee's absence from duty without authorization dur- ing designated work hours on Feb. 16, 2018, and failure to re- port same to your supervisor." It also said Mardon was absent from duty without authorization and he made an "inaccurate time claim." The Teamsters Canada Rail Conference, Maintenance of way employees division grieved the firing. It argued Mardon's illness should be a mitigating factor and, in any case, he didn't violate the LCA. As well, the clause in the LCA that allowed the employer to sub- stitute termination for lesser pun- ishment was not followed, said the union. However, arbitrator Richard Hornung rejected the argument and upheld the dismissal. "The LCA clearly states that a breach of its conditions is to be considered just cause for termin- ation. It equally clearly restricts my jurisdiction to determining if a breach of the LCA existed and, if so, specifically excludes my juris- diction to impose a lesser penalty. The LCA ought, therefore, to be enforced according to the clear in- tention of the parties." As well, the lesser-punishment argument was dismissed by Hor- nung. "It does not thereby establish a transcending obligation on the company to prove that just cause existed, so as to warrant termina- tion pursuant to the William Scott test. Unless the specific terms of the LCA provide otherwise, a clause — as in this case — which provides the company with the option/authority to choose to im- pose a lesser discipline in place of dismissal does not compel the employer to prove that its primary choice of dismissal was appropri- ate in the same fashion as if the LCA did not exist or otherwise was merely another consideration to be taken into account." Reference: Canadian Pacific Railway Company and the Teamsters Canada Rail Conference, Maintenance of way em- ployees division. Richard Hornung — arbitrator. D. Brown for the employee. March 8, 2019. Employee previously dismissed for falling asleep on job < LCA pg. 1 < Dirty joke pg. 1 Coworker in tears recounting story about 'vulgar' language

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