Canadian Labour Reporter

June 24, 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 24, 2019 ARBITRATION AWARDS Bravo left the room and the washing was completed without incident. Later that day, the pa- tient was seen resting peacefully and it appeared he suffered no ill after-effects from his treatment. After a few days of thinking about the actions by Bravo, Bel- taifa spoke to unit manager Mina Pound about what "looked like abuse" to him. From Fairhurst's perspective, Bravo was "almost bouncing" the patient's leg during the washing care treatment. Bravo was interviewed on March 19, and she said that she was merely there to help as the pa- tient was sometimes uncoopera- tive. "I am holding his leg so that he does not roll back over," testi- fied Bravo. The employer, Alberta Health Services (AHS), terminated Bravo after an investigation. "We have concluded that your actions constitute patient abuse, are a serious breach of AHS poli- cies relating to the provision of safe quality nursing care, and are fundamentally incompatible with the standard of conduct expected in the care and treatment of AHS patients," said the letter. An earlier incident of mistreat- ment was referenced in the letter. This happened on Oct. 29, 2017, when Bravo worked a night shift and was left alone while other staff members went for an hour-and-a- half lunch break. A patient who was at risk of leaving his bed was wheeled to the nursing station in a large pad- ded chair. While they went on their break, Bravo was tasked with closely monitoring the patient so he couldn't get up and walk around, which might have caused an injury. The patient was eventually bar- ricaded by other equipment to stop his movements and calm him down. He removed his catheter bag and threw it on the ground during that time. Bravo was given a one-day sus- pension for trapping the patient, which was not an acceptable ap- proach to such a situation. Arbitrator Tom Jolliffe upheld the disciplinary action but or- dered the termination to be over- turned. "I see no indication of any ani- mus on her part towards Mr. D, no intention formed to act against him." "(Bravo), in seeking to stabilize the patient's right leg, took hold of it firmly in leaning over the bed from the other side, thereaf- ter taking an extra second or two to recognize the difficulty caused and respond to her coworker's verbalized concern concerning a sensitive right leg about which she had not been informed earlier nor cautioned before becoming in- volved. I accept that she may well have left the visual impression with Beltaifa that she was pressing down on the leg or with Fairhurst that in her holding the leg she was almost bouncing it, which does not lead me to conclude that in the three seconds or so that she held the leg to stabilize it, she was in- tending on acting in any fashion to abuse the patient," said Jolliffe. Reference: Alberta Health Services and United Nurses of Alberta. Tom Jolliffe — arbitrator. Monica Bokenfohr for the employer. Joe Ahrens for the employee. Feb. 5, 2019. 2019 CarswellAlta 251 On Oct. 25, 2014, he and anoth- er coworker were ordered to "run long" or work extra time through Cranbrook. The pair objected to an assis- tant superintendent, who wrote a memo afterward and described Lind as being overly loud and ani- mated in his disapproval of the action. Eventually, Lind and the coworker followed orders but not before they caused a delay. Later that day, Lind sent an email to a superintendent in which he said he felt the assistant superintendent threatened and bullied him. On Oct. 28, Lind was seen driv- ing an excavator at his daughter's farm despite being "booked unfit" for that day. Lind said he was not feeling well due to the Oct. 25 incident and he booked time off. The work with the heavy machinery was only mi- nor, said Lind, and he rested most of the day. "Given the nature of what oc- curred in these three incidents, (Lind's) 33 years with the com- pany, his disciplinary history (zero demerits at the time of the incidents) and the severity of the discipline issued to the grievor, I find that discharge was not jus- tified," said arbitrator Marilyn Silverman in making a ruling on Feb. 3, 2016. Lind was ordered reinstated and compensated for all lost wages and benefits for the time he was off work. However, because Lind was off work for some time, CP ordered a full medical reassessment which included substance testing. At first, Lind objected to the testing but he eventually relented. The union, the Teamsters Canada Rail Conference, grieved this request and asked for redress and full wages and benefits for Lind from Feb. 24, 2016, to June 9, 2016, when he was off work due to the delay in the substance test- ing. The company relied on a "ho- listic approach" to establishing an employee's fitness to return to work after more than six months off, said George Lambros, CP's chief medical officer (CMO). This approach meant that 10 per cent of employees suffered from a substance-use disorder, according to Lambros, which justified their decision to order the testing. Arbitrator Graham Clarke dis- agreed and ordered Lind to be compensated for the extensive time off. "An arbitrator reinstated Lind in a case which never involved drug or alcohol allegations. Noth- ing specific to Lind's situation justified the need for substance testing. No facts arose from his 33 years of service which would es- tablish reasonable cause. Without specific facts for Lind's situation, CP's demand lacked reasonable cause," said Clarke. And the argument put forth by the company's doctor was wholly rejected by Clarke. "The CMO commented that a job termination can lead to finan- cial and other stressors which may lead to a substance use disorder. Comments were also made that reliance cannot be had on em- ployee medical forms since they may lie about substance abuse. The legal problem with a deci- sion based mostly on a 'holistic approach' is that, absent facts specific to the employee, the pro- cess appears to lead to mandatory substance testing for virtually any employee who an arbitrator may reinstate." Reference: Canadian Pacific Railway Company and Teamsters Canada Rail Conference. Graham Clarke — arbitrator. K. Stuebing for the employee. Jan. 28, 2019. 2019 CarswellNat 353 No indication of drug, alcohol abuse by employee: Arbitrator < Substance testing pg. 1 < Holding down pg. 1 Employer relied on earlier incident of patient mistreatment 'No indication of any animus on her part': Arbitrator

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