Canadian Labour Reporter

8 Canadian HR Reporter, a HAB Press business 2019 September 16, 2019 ARBITRATION AWARDS said that Mallory needed a doc- tor's note to justify the time off. On April 9, she received a note from her doctor that stated: "Ellen Wanita Mallory will be off work until May 22, 2019 for medical reasons." However, while she was off work, Mallory worked 12 days at a Tim Hortons, where she had been working since March 25 to supplement her lowered income. But on April 29, Mallory was dismissed after the employer dis- covered her second job. Mallory never did advise Rodd Moncton about the extra employment. The union, Unifor, Local 4528, filed a grievance on May 2. The employer argued that because the Tim Hortons shift ended at 6 a.m., Mallory could not possibly make it to Rodd Moncton for the breakfast-attendant shift, which was at 6 a.m. As well, because Mallory used the doctor's note to get time off from Rodd Moncton, then contin- ued to work at the restaurant, she was dishonest with the employer, said Rodd Moncton. Mallory was not dishonest about the second job, argued the union, because she was never asked about it. And the two busi- nesses were so dissimilar that no conflict of interest existed. And because the employer had cut back on her hours, Mallory was only trying to make up the lost income and this was not prohib- ited in the collective agreement, according to Unifor. Arbitrator Guy Couturier agreed and partially upheld the grievance. "I do hereby direct and order that Wanita Mallory's discharge be rescinded and replaced by a period of suspension, without pay, benefits and seniority ac- crual, for 60 days from the date of discharge of April 29, 2019 and that she thereafter be reinstated to her position by Rodd Moncton, without further loss of benefits or seniority. She is also to be com- pensated for any loss on income resulting from her discharge from that latter date to the date of this decision, calculated as being the equivalent of her applicable wage rate and based on a 32.5-hour work week, less any wages earned elsewhere during that period." Mallory's actions didn't war- rant the firing, said Couturier, but it did cross the line. "What motivated (Mallory) was not to defraud her employer or take some benefit from it that was not hers to be had, but rather to arrange her affairs that her in- come would be increased. Her method for doing so was decep- tive and merits severe sanction, but not her dismissal. Her dis- charge was disproportionate re- sponse to the conduct she exhib- ited." "(Mallory) was deceptive and dishonest in her dealings with the employer. She should have dis- closed the existence of the second job, as well as the reasons for it, to the employer," said Couturier. Reference: Rodd Moncton and Unifor, Local 4528. Guy Couturier — arbitrator. Clarence Bennett, Evan MacKnight for the employer. Kim Power for the employee. Aug. 14, 2019. 2019 CarswellNB 395 multiple reasons for the firing: "insolence, insubordination, breach of the respectful work- place charter, breach of the code of ethics, breach of the oath of confidentiality and breach of trust," and was written by Carey Fraser, executive director. On April 24, Ferraro began her regular night shift at 10:15 p.m. At 8 a.m. the following day, Ferraro met with supervisor Lori Stolson who asked her if she belonged to the negative Facebook group. Ferraro said that about a week previous, she was added to a Face- book chat or Messenger page without her consent. The page was up only for one day, she testi- fied, before it disappeared. Ferraro was asked to show Stol- son her cellphone to prove that she was no longer part of the group. Af- ter Ferraro refused, Stolson phoned Fraser and placed her on speaker phone inside the meeting room. Fraser and Stolson both re- peated the request and Ferraro again refused. Her request to have a union steward present was de- nied. "She is a member, she has par- ticipated in contacting funders, she had an active participation," testified Fraser. (A number of employees are currently being sued by the asso- ciation, claiming defamation. Fer- raro was named in the suit.) Ferraro did not ask for union representation according to Fra- ser but when asked why she didn't allow a union member to attend the meeting, she said, "I don't re- call." After the brief meeting ended, Fraser typed a termination let- ter from a template and emailed it directly to the union, the B.C. Government and Service Employ- ees' Union (BCGEU). The note said that, "effective immediately," which was 8:15 a.m., Ferraro was dismissed. Ferraro wasn't notified about the letter and she went home af- ter her shift ended. Later that day, Ferraro arrived back for her evening shift and she was advised about the termination by Fraser and Stolson. Arbitrator Marguerite Jackson upheld the grievance and ordered CMHA to pay $20,000 in punitive damages to Ferraro and for her to be paid wages, lost overtime and potential overtime statutory holi- day pay between April 25, 2018 and April 18, 2019. "While the employer argued there were no collective agree- ment breaches, in my view, there could not be a clearer case. These two management representa- tives blatantly disregarded the collective agreement again and again and again. Fraser's flagrant contempt for (Ferraro's) rights to advance notice and to have a stew- ard present for both interviews cannot be justified in any way. Her conduct was high-handed and reprehensible as well as contrary to an employer's obligation to act in good faith when misconduct is alleged," said Jackson. As well, CMHA was ordered to repay "Service Canada for the applicable amount of El income received by (Ferraro) during the period of her claim." The conduct of the executive director was particularly egre- gious, according to the arbitrator. "Even after Fraser acknow- ledged that she had no direct knowledge of (Ferraro) being in- volved with A Community United [the title of the Facebook chat group] except for the inclusion of her diary entries in the package, she claimed in her testimony that (Ferraro) 'is a member' who 'had an active participation. Fraser continued to maintain unfounded allegations even at the hearing." Reference: Canadian Mental Health Association and B.C. Government and Service Employees' Union. Marguerite Jackson — arbitrator. Jamie Lalonde for the employer. Ken Mooney for the employee. July 30, 2019. 2019 CarswellBC 2433 Management 'blatantly disregarded' agreement: arbitrator < CMHA pg. 1 < Second employment pg. 1 Worker completed shifts at Tim Hortons while on leave "(Mallory) was deceptive and dishonest in her dealings with the employer."

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