Canadian Labour Reporter

8 Canadian HR Reporter, a HAB Press business 2019 July 15, 2019 ARBITRATION AWARDS eventually became the successful candidate. On Dec. 21, all candidates had been interviewed and passed the "validation meetings" which meant they were all initially qualified. Answers and notes were en- tered into a computer program that tallied the scores for the can- didates. Robichaud and Lapointe were the two top-rated applicants, with Lapointe narrowly ahead of Robichaud under the perfor- mance ranking category. Lapointe was rated "highly rec- ommended," while Robichaud was classified as "recommended." Their seniority dates were on the same day, and because every- thing was so close, Barb Harris, manager of department of inven- tory, planning and operation, and Jennifer MacPherson, human re- sources specialist, discussed who should be the winning employee. Based on the answers given during the "validation meetings," and his demonstrated "leader- ship" skills, Lapointe was awarded the position which he started on Jan. 18, 2018, said Harris. On Feb. 28, Robichaud and the International Brotherhood of Elec- trical Workers (IBEW), Local 37, grieved the decision and charged the employer violated article 17.06 of the collective agreement. Robichaud had plenty of su- pervisory experience at NB Pow- er, and other workplaces, so he should have been given more con- sideration, he testified. As well, he had more experience in the ware- house at Belledune between 2001 and 2005, which was more than Lapointe, and he had more than two years of experience with NB Power field and plant operations, which Lapointe didn't. But, when asked whether he had more leadership abilities than Lapointe, "I don't challenge that Terry Lapointe had better lead- ership skills than me," said Robi- chaud. "When ability and qualifica- tions are equal, service shall govern. When ability and quali- fications are equal and service is identical, other relevant factors will be considered (non-service time, previous acting assign- ments, previous experience, ca- sual time, student time, etc.)," said article 17.06 of the agreement. Arbitrator Michel Doucet dis- missed the grievance. "I do not doubt Harris' sincerity when she said that 'leadership' is what made her select Lapointe for the position. She never challenged the fact that (Robichaud) had the same abilities and qualification as Lapointe and that he might have been able to do the job of super- visor. However, she was caught in a quandary and had to decide, after a rigorous selection process, which of two candidates who were tied should be retained. Harris, as the employer's representative, ex- ercised the managerial discretion provided for at article 3.01 of the collective agreement without dis- crimination or bias and took into consideration a relevant factor which resulted in Lapointe being chosen for the position." No evidence of anything un- toward was presented, said the ar- bitrator, which meant the process was above board. "If the employer had taken into consideration the colour of the employee's shirt during the 'evalu- ation meeting', this would not have been a 'relevant factor.' How- ever, taking into consideration the 'leadership skills' of the employees can be considered as a relevant factor. During her evidence, Har- ris clearly indicated that what she was looking for in the success- ful candidate was his leadership abilities and this evidence was not challenged. Her evidence was also that Lapointe's leadership skills, that he had demonstrated dur- ing the 'evaluation meeting,' had tipped the scale in his favour. Even (Robichaud), during his cross-ex- amination, did not challenge the assertion that Lapointe had better leadership skills than him. Reference: NB Power and Canadian Office and International Brotherhood of Electrical Workers, Local 37. Michel Doucet — arbitrator. Clarence Bennett for the employer. Brenda Comeau for the employee. June 12, 2019. 2019 CarswellNB 245 who was identified as "AB" during the arbitration hearing. Mossman had reported to AB for 10 years as foreman and later as district foreman. Employees regularly used cell- phones to communicate with fore- men but beginning in February 2017, Mossman started to send sexually charged messages after AB's divorce from her husband. AB testified that Mossman had become sexually interested in her but at no time did she reciprocate. She said that as a woman, she was often faced with sexual messages from male employees but her strat- egy was to ignore or laugh off such attention so as not to cause too much trouble in the workplace. Some of the text examples sent said: "Wish I had a good woman in my life to help me" or "Hello pretty lady" or "I missed you." On May 24, 2017, Mossman texted AB to thank her for a ser- vice award he received. "Now I guess I owe you dinner and a mov- ie and a few drinks. I hope you are doing well. Take care." AB ignored the request and the following day sent a reply message. "You're welcome. I'm doing fuck- ing awesome! Have a good one!!!" The message should have been clear, said AB, that she wasn't in- terested in the date request and he should have refrained from any more similar requests. But Moss- man continued to send sexually charged texts. On Jan. 9, 2018, Mossman sent a message that showed an ankle swelling but also included a pe- nis. The message was laughed off, said AB, as it was something that she had previously seen on social media. More messages were sent by Mossman but on April 25, in re- sponse to AB's request to see a photo of damage to his truck, he swiped through the pictures app on his phone and showed AB a picture of his erect penis. Moss- man apologized but later he twice asked her if she wanted a copy of the image sent to her via text. AB later spoke to another dis- trict foreman about the incident. She also contacted Billington and began the process of a formal complaint against Mossman. He was suspended with pay that day and on May 8, Mossman was dis- missed. "You admitted to showing the photo of your penis to your foreman and asking her if she wanted a copy on two separate oc- casions," said the letter. The union, the Canadian Union of Public Employees (CUPE), Lo- cal 37, grieved the firing on June 22. Mossman wrote a letter of apology on June 25. Arbitrator James Casey upheld the termination. "(Mossman's) misconduct is aggravated by his attempt to un- dermine AB with one of her sub- ordinates during the investigation by telling him not to 'fking trust her' (sic). The message shows that (Mossman) was blaming the vic- tim for 'betraying' him, instead of accepting responsibility for his misconduct. He continues to deny he showed AB the photograph in- tentionally. I find that he has not truly accepted accountability for his actions. I am not convinced that he understands the impact of his behaviour on others. Unfortunate- ly, I am not convinced 'he gets it.'" If the viewing of the penis was truly accidental, said Casey, the case might have been decided differently. "However, the in- tentional nature of (Mossman's) misconduct is an aggravating fac- tor especially given that he twice presses AB to accept a copy of the photograph through the offer in the office to send her the picture and again a few hours later while he was out working in the field." Reference: The Corporation of the City of Calgary and Canadian Union of Public Employees, Local 37. James Casey — arbitrator. Avril Fisher for the employer. E. Wayne Benedict for the employee. May 30, 2019. 2019 CarswellAlta 1073 Driver asked twice about sending more photos after apology < Penis picture pg. 1 < Denial pg. 1 Winning candidate had 'better leadership': Grievor

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