Canadian Labour Reporter

8 Canadian HR Reporter, a HAB Press business 2019 October 14, 2019 ARBITRATION AWARDS The worker continued to have performance issues and in late fall 2014, she went on sick leave, claiming she couldn't perform the duties of her position. The worker returned briefly in the spring of 2015 but this arrangement didn't last. The Ontario Workplace Safe- ty and Insurance Board (WSIB) eventually became involved, help- ing develop a return-to-work plan for March 2016. The plan was to put the worker back in the ac- commodated light cleaning posi- tion she had occupied before her transfer. The worker — while still on sick leave — requested four weeks of vacation so she and her husband could visit her sick parents in the Philippines. However, her request was denied because the return-to- work plan was to begin on March 17, 2016 and the hospital normally didn't approve vacation requests for employees on leave. The worker said that her mother had had a stroke and her medical condition was "extremely dire." Hospital policy provided for unpaid leave for employees to provide care or support to indi- viduals "with the most serious and life-threatening medical condi- tions" if a worker provided writ- ten confirmation from a medical practitioner, so the worker applied for and received this leave. Her re- turn-to-work plan was postponed to April 6. When the worker returned to work, she provided a certificate from her mother's doctor, who had checked "no" for the question on whether the worker's mother had a serious medical condition. The hospital held a fact-find- ing meeting where the worker said her mother had been in the hospital when she arrived in the Philippines due to a stroke. How- ever, the worker admitted that the stroke had happened years earlier. A followup with the mother's doctor confirmed that she had a serious medical condition in 2013 but at the time of the worker's vis- it, the mother was "stable with no complaints." Hospital management decided that the worker had misled them about her mother's medical con- dition and falsely applied for the leave. Her dishonesty, lack of ac- knowledgment and two previous suspensions on her record — one day for time theft and dishonesty and three days for insubordinate behaviour and dishonesty — was enough for the hospital to termi- nate her employment for cause. The arbitrator agreed that the worker demonstrated "repeated dishonesty" by applying for the leave when her mother's condition didn't meet the criteria and trying to mislead the hospital when asked about it when she returned. This extended attempt to mislead the hospital was serious misconduct, particularly since she should have been aware after her two suspen- sions that her job would be in jeop- ardy with further misconduct. This dishonesty and the lack of any remorse or acknowledgement did not "auger well for the success- ful return of an employee, even one with long service," said the ar- bitrator. Reference: St. Joseph's Health Centre and CUPE. William Kaplan — arbitrator. Stephanie Young for the employer. Faiz Ahmed for the employee. Sept. 23, 2019. 2019 CarswellOnt 15004 appeared on the spreaders, GCT used its own welders to fix them, but sometimes it contracted the work to outside contractors. This mixed use of employees and con- tractors for welding was normal practice for several years. However, in January 2019, a structural weld on a crane failed. The weld had been done by one of GCT's own welders, so the company reviewed its practice of handling this type of repair. It de- termined that welds for structural cracks would only be contracted out to contractors who were certi- fied by the Canadian Welding Bu- reau (CWB) to ensure the struc- tural welds were performed in accordance with CWB standards. Many equipment suppliers re- quired structural welds to be done pursuant to CWB standards and GCT was concerned about work- place safety under the Canada La- bour Code. The union representing GCT's new policy, argued that the welders in its membership were "A" ticketed welders — the highest standard of certification in B.C. — and this made them capable of performing structural welds. The union point- ed to the fact that its welders had performed such repairs frequently and capably for several years. The collective agreement between GCT and the union required that members of the bargaining unit be the ones to perform "regular maintenance work" on GCT's equipment, as long as qualified employees were available onsite or through the dispatch system. If no employees were available, then GCT was per- mitted to contract out the work. The collective agreement also stated that work not included un- der "regular maintenance work" — such as "work required on new construction, new installation, significant alteration of existing structures or installation, or work under warranty" — could be per- formed by outside contractors as GCT saw fit. GCT was required to notify the union "in a timely man- ner" of any new work not falling under regular maintenance work. The arbitrator noted that GCT's concerns over safety and CWB certification were legiti- mate, but these were priorities regardless of who did the work. However, just because employ- ees had done the work in the past didn't mean it was required under the collective agreement, said the arbitrator, in pointing out that employees hadn't done the work exclusively in the past. The arbitrator found that "regu- lar maintenance work" wasn't de- fined in the collective agreement, but there was no doubt checking for cracks and normal repair was part of it. The evidence indicated that structural cracks don't nor- mally occur in spreaders and cranes when they are properly manufac- tured, and they only showed up when the equipment reached the end of its normal useful life or it suf- fered damage in an accident. This meant structural cracks weren't normal and repairing them wasn't part of regular maintenance work, said the arbitrator. The arbitrator determined that "these types of cracks in structural components only occur in ex- traordinary circumstances such as a manufacturing defect, accident or improper use of the equipment" and fixing them wasn't "usual, nor- mal or ordinary." Though union members were sometimes as- signed to do this work, it wasn't part of regular maintenance or re- pairs and GCT wasn't prevented by the collective agreement from contracting it out. The grievance was dismissed, but the arbitrator cautioned that GCT should assess each situa- tion on a case-by-case basis to see if there were employees available who could do the work — and keep the union in the loop. Reference: BCMEA Global Container Terminals and ILWU, Local 502. Gabriel Somjen — arbitrator. Michael Smolander for the employer. David Burton for the employee. 2019 CarswellNat 4785. Jobs that aren't 'regular maintenance' may be contracted < Normal work pg. 1 < Misleads employer pg. 1 Employee's mother had stroke years earlier Hospital cleaner demonstrated 'repeated dishonesty': arbitrator.

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