Canadian Labour Reporter

8 Canadian HR Reporter, a HAB Press business 2019 August 26, 2019 ARBITRATION AWARDS removal if it fell on the mill over- night. As a business that operated 24-7, there was no down time, said the company. Employees who did snow re- moval on the same day they were to work were allowed "sleep time" at the beginning or the end of their regular shifts, according to 16.06 (c) of the collective agreement. Workers typically took the time at the end and, as a result, left the mill site early. Irving wanted to end this prac- tice, as it involved them losing a portion of the workforce at times. As many as five employees were typically involved in snow clear- ing work, said the employer. But the department never had to shut down due to snow remov- al duties, testified Charles Mike Miller, who worked in the supply and services area. The collective agreement, in ar- ticle 26.01, said Irving "will confer with the union and give written notice as far in advance as practi- cable, prior to such contracts." But on Oct. 12, the union was advised about the new arrangement with- out any consultation, said Robert Pearson, president of Local 30. Arbitrator Michel Doucet agreed. "I declare that [Irving Pulp and Paper] has violated article 26.01 of the collective agreement. Al- though compensatory damages could have been ordered as a re- sult of this violation, none will be awarded as the union did not sub- mit any evidence that the bargain unit or any member of the bar- gaining unit had suffered damages as a consequence of the violation." The argument that snow re- moval falls under the purview of Gulf Operators was rejected by Doucet. "[Irving] further argues that the work in issue in this grievance, 'snow removal,' is included under item number two of this list, which reads, 'cranes and equipment (civil work)'. I cannot accept this explanation. If the parties wanted to create an exception to an ob- ligation created by the collective agreement, they will have to be more specific and precise in the wording they use. I see no reason why I should conclude that 'cranes and equipment (civil work)' in- cludes 'snow removal'. This being the case, I must conclude that [Ir- ving] did not provide the required notice in advance of its decision to contract out the work." "[Irving] suggested that the meetings of October and No- vember 2018 complied with this obligation. I beg, however, to dif- fer. When these meetings were held, [Irving] had already decided to contract out the work. What- ever the union might have said then was, therefore, irrelevant. This cannot be what the parties intended when they negotiated this clause. Why would the par- ties waste time 'conferring' on a matter when they know that what- ever they say is inconsequential, because the decision had already been made?" Reference: Irving Pulp and Paper and Unifor, Local 30. Michel Doucet — arbitrator. James Green for the employer. Mike MacMullin for the employee. Aug. 1, 2019. 2019 CarswellNB 366 The Anzer database system was designed to allow only one person at a time to open files, so changes were not affected by more than one employee. After Claude saw a pop-up win- dow advising her that Thauvette was in the record, she phoned her (Thauvette worked in the mental health and addiction area of the hospital, in a separate building away from where Claude worked). Thauvette denied ever being in the file and after she was notified, she went into the patient's file to see if there was any reason for the message appearing. (Under Personal Health In- formation Protection Act rules, employees were not allowed to ac- cess any patients' records, unless there was a valid reason to do so. The hospital had a similar policy in place). After Thauvette opened the file, she spoke to her supervisor, Anne-Marie Lefebvre, who was also designated as a "super user" of the Anzer system. Lefebvre opened the file and also found no reason for the apparent anomaly. An audit report produced by the hospital's IT department showed that Thauvette opened the patient's file at 10:03 a.m. Claude attempted to open the file at 9:55 a.m. and again at 9:59 a.m. before she phoned Thauvette, who immediately alerted the IT department about a potential sys- tem malfunction. An investigation was launched by the employer and on Sept. 24, Imrana Jeoffrey, chief privacy officer, interviewed Thauvette who continued to maintain that she only opened the file after be- ing called by Claude. Thauvette suggested the incident was most likely the result of a "glitch" in the computer system. Claude repeatedly tried to open the file but was rebuffed until 12:12 p.m., when she was finally able to get in. On Nov. 23, Thauvette was given a 10-day unpaid suspension, but it was ultimately reduced to five days. The union, United Steel, Paper and Forestry, Rubber, Man- ufacturing, Energy, Allied Indus- trial and Service Workers Interna- tional Union (USW), grieved the discipline. The union argued that an audit didn't establish that Thauvette was in the file. As well, by waiting so long to impose the suspension, this was unfair to her, said the union. Arbitrator Michael Bendel agreed. "The suspension is set aside. I order the employer to compensate the grievor for wages and benefits lost as a result of the suspension." The employer's actions were also chastised by Bendel. "While the above is a sufficient basis to al- low the grievance in full, I would also have drawn an adverse infer- ence against the employer, if it had been necessary to do so, from its failure to call as a witness the Anzer consultant who had been involved in the investigation of the grievor's alleged wrongdoing. This consultant had relevant evi- dence to give, not just because of any expertise he might have had, but mainly because he appears to have been involved in the in- vestigation in a senior capacity. The failure to call him as a wit- ness — when the employer knew from the beginning that Anzer's reliability was being disputed by the grievor — raises the large, un- answered question whether the investigation had revealed some issue with the functioning of the software." Thauvette's behaviour strongly supported her claim of inno- cence, said Bendel. "I note that [Thauvette] made a report to IT within minutes of learning of the problem being experienced by Claude. It seems to me that if [Thauvette] had indeed breached patient confidentiality, as alleged by the employer, making a report to IT would have been the last thing she would have wanted to do since it would inevitably have drawn attention to her miscon- duct which, otherwise, might well have passed unnoticed." Reference: Hawkesbury and District General Hospital and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. Michael Bendel — arbitrator. Geneviève Tremblay- Tardif for the employer. Richard Leblanc for the employee. Aug. 8, 2019. Database vendor not called as witness to arbitration hearing < Child's record pg. 1 < Snow-clearing pg. 1 Employer decided before 'conferring' with union: arbitrator

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