Canadian Labour Reporter

July 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 HAB Press business 2019 July 8, 2019 ARBITRATION AWARDS expectations of others. Improve- ments to the delivery of her mes- sage would make her a leader." The woman was given her first warning letter on May 16, 2013, by a manager identified as "WL," for her "angry, offensive tone, language and disposition in the workplace." She was also accused of "rudely" challenging someone during a staff meeting and treat- ing another employee with "ag- gressive, offensive, disrespectful and… bullying behaviour." The grievor was given her sec- ond disciplinary action on Sept. 11 by WL, after another incident on Sept. 3 that was characterized as being "antagonistic, dismissive and disrespectful" toward a coworker. She was accused of being rude to a colleague identified as "Joyce" who phoned into the assignment centre to inquire about an order. The grievor admitted she "could have handled it better," dur- ing the arbitration hearing but didn't believe she was rude during the interaction. The worker was also discour- teous on the phone with another colleague on Sept. 9 and she hung up abruptly at the end, saying, "We are not your support then." For her actions, she was given a one-day suspension. During a Sept. 9 phone call to an installer identified as "Chris," the grievor was accused of being rude with him and saying, "What a ...." as she transferred the phone call to WL. After a review of the recording with WL, the grievor again refused to acknowledge her behaviour was wrong. Another one-day suspension was given to the grievor on Sept. 24. In her 2014 performance evalu- ation, the employee was described as someone who "has failed to consistently display the corporate values." However, in response, she wrote "In my opinion, I believe that WL is incompetent as a manager," and she refused to sign the report. On May 22, 2014, the grievor was involved in a serious of calls with two installers. "Your treat- ment of other employees in these situations continues to be disre- spectful," said another manager, identified as "LS." The grievor was again given a one-day suspension. An investigation into the "work environment to identify and ver- ify (grievor) behaviour and the impact it has on co-workers and customers" was launched in 2016 and conducted by external inves- tigator Stephen Wernikowski. In January 2017, the report concluded that the grievor's be- haviour "contributed to a work environment that is psychologi- cally stressful, unhealthy and dis- respectful." On March 7, she was termi- nated for "gross misconduct." The union, Unifor, Local 2S, grieved the termination and three other disciplinary actions. Arbitrator Allen Ponak upheld the dismissal. "Her performance appraisals, some of which she refused to sign, said that her conduct needed to change. She was disciplined three times about her disrespectful be- haviour. Her two one-day suspen- sions clearly warned that her con- duct would not be tolerated. While the last discipline was in 2014, the grievor was told that her behaviour needed to change during coach- ing meetings in 2016. The fact re- mained that the grievor never really accepted that she was the problem." Reference: Sasktel and Unifor, Local 2S. Allen Ponak — arbitrator. Lee Anne Schienbein for the employer. Gary Bainbridge for the employee. June 13, 2019. 2019 CarswellSask 280 ments despite our numerous doc- umented attempts to secure de- tailed medical information from you that substantiate your illness," said the letter, which went on to cite article 19.04 in the collective agreement. "Sick leave with pay is only payable because of sickness and employees who are absent from duty because of sickness may be required by the employer to prove sickness. Failure to meet this re- quirement can be cause for disci- plinary action. Repeated failure to meet this requirement can lead to dismissal." The agreement also included a mandatory enhanced disability management program (EDMP) that allowed the employer to "col- lect, use and disclose informa- tion about (the employee) that is necessary for the operation of the EDMP, the continuation of or re- turn to work." Kozak first booked off work due to sickness on Jan. 23, 2017. De- spite being officially off sick, Ko- zak often came back to the office after hours to catch up on work. The employer ordered Kozak to cease this activity and changed the locks after she refused to comply. On Feb. 15, Kozak was told she had to get clearance from a work- place disability advisor before she could return to work. Kozak received the documents and was told to enroll in the EDMP. She was given deadlines of March 14 and then March 21 to return documents, but Kozak didn't comply. Kozak later phoned Michelle Kelsey, laboratory site supervi- sor, and Debbie Conn, manager of laboratory operations, to say she should be back at work by Eas- ter. Conn advised Kozak that she must comply with the employer's requirements, including enrolling in the EDMP, before she could re- ceive clearance to return to work. An April 18 letter was not heed- ed. Kozak was placed on "unau- thorized leave of absence" without pay, effective April 26. Another let- ter by Conn said that if the request- ed documents weren't received by May 19, the HEABC would "pro- ceed with terminating your em- ployment effective that date." However, Kozak was not termi- nated and she was given another chance by Mooder to comply and told to attend a June 23 meeting or her "conduct will be deemed seri- ous and will result in discipline, up to and including termination of your employment." Kozak didn't respond as well as to another request for July 12. She was suspended for two days. Fur- ther requests also were not heed- ed and Kozak was suspended for four days in August. On Aug. 14, Kozak sent medical notes but "they do not sufficiently detail enough medical informa- tion about the nature of your ill- ness to support your absence from work since January 2017," wrote Mooder. After many back and forth doc- uments and a refusal of nine times to comply with the requirements, Kozak was terminated on April 10, 2018. The Health Sciences Association of British Columbia (HSA) grieved the dismissal. Kozak said she didn't enroll in the EDMP for privacy reasons and she didn't want to apply for LTD benefits due to the stigma around them. However, arbitrator Mark Brown upheld the firing. "Kozak, despite numerous re- quests from the employer, numer- ous warnings from the employer, progressive discipline applied by the employer and advice from the union, took it upon herself to not respond in the way requested. Eventually (Kozak) did send in one OGMT (ongoing medical treat- ment) prior to termination but it lacked information and noted that medical information would be kept confidential in any event. Es- sentially, Kozak's view was that she was not going to provide the em- ployer with any information." Reference: Health Employers Association of British Columbia and Health Sciences Association of British Columbia. Mark Brown — arbitrator. Dave Hanacek for the employer. Stephen Hutchison, Jessica Derynck for the employee. June 7, 2019. 2019 CarswellBC 1694 9 requests for documentation denied by long-time worker < Technician fired pg. 1 < Harassment pg. 1 Employee 'antagonistic, dismissive, disrespectful': Manager

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