Canadian Labour Reporter

October 21, 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 October 21, 2019 ARBITRATION AWARDS suspected the worker might have taken pictures of them with his cellphone. The CAO requested the work- er's cellphone. The worker pro- vided the phone and access PIN but requested to be present when it was examined because it had personal information on it. The CAO replied that the phone be- longed to the district and denied the request. The CAO looked at some of the pictures on the phone and didn't see anything inappropriate. How- ever, he had to leave before see- ing all the pictures, and when he returned, he could no longer ac- cess the device. The worker said his wife had wiped the phone re- motely and she had the Apple ID and password to access the infor- mation. He claimed he hadn't asked his wife to deactivate the phone and also denied watching or taking pictures of his co-workers — his work sometimes took him to the places where they worked and he was frequently on his phone then. The CAO gave the worker a deadline to provide his Apple ID and password to access the infor- mation from the phone, but the worker failed to do so. The dis- trict suspended him without pay pending an investigation and the worker was warned that his wife's access to a work cellphone and setting it up with a personal ac- count were unauthorized use of district property. On Sept. 7, the district termi- nated the worker's employment for destroying evidence relevant to the investigation, citing insub- ordination, lack of remorse for his misconduct, and dishonesty dur- ing the investigation. The arbitrator noted that the worker was initially co-operative, but the district had reason to be suspicious when the cellphone was wiped. Though it was the worker's wife who erased the phone, the worker didn't make much of an ef- fort to provide the access ID and password to help address the dis- trict's "legitimate concerns." The arbitrator found that the district had a responsibility to ensure a safe workplace, so it was reasonable to seize and search the cellphone. Though normally sus- pensions pending investigations were with pay, the district had cause to suspend the worker with- out pay due to the "cloud of suspi- cion" that the worker encouraged with the cellphone deactivation, said the arbitrator. However, the district didn't es- tablish that the worker had actual- ly spied on the female co-workers. There were legitimate work rea- sons for the worker to be in those locations and there was no proof of the allegations. There was no concrete evidence the worker was guilty of spying on the women or that he was dishonest about it, said the arbitrator. While the worker's insubordi- nation and failure to co-operate with the investigation deserved discipline, the district already dis- ciplined him with an unpaid sus- pension. As a result, the district didn't have just cause for termina- tion, concluded the arbitrator. Reference: Houston (District) and CUPE, Local 2086 (Standbridge). Paul Devine – arbitrator. April 5, 2019. Carolyn MacEachern for employer. Mitch Guitard, Natasha Morley for employee. 2019 CarswellBC 2634 that if he was unhappy, he should go work elsewhere and Sipkes felt he was targeted because he was a vocal advocate on behalf of the union. Part of a driver's daily duties was to complete a daily log sheet. Past practice was for drivers to place their completed paperwork in a slot on the ground floor of the worksite. However, in October 2018, Snoek asked drivers to submit their paperwork directly to her in her upstairs office so she could look at it immediately. On Nov. 2, Sipkes was com- pleting his paperwork at the end of the day when Snoek told him to bring it to her office. He said he would do so when it was fin- ished. However, when he started up the stairs after completing the paperwork, he noticed the office light was out and another em- ployee told him Snoek had just left. Sipkes decided to place the paperwork in the slot as per past practice. The next morning, Snoek thought Sipkes had intention- ally refused to follow her direc- tions. A few days later, she issued a "third written notice" to Sipkes under the progressive discipline policy and cited his failure to complete work orders for repairs to a truck — though Sipkes was known to be thorough on work orders and no other employee had been disciplined for failing to complete them. On Dec. 7, Snoek and Sipkes had a heated conversation with profanity. They had another ar- gument three days later over a ju- nior employee being dispatched instead of Sipkes, during which Sipkes poked his finger in Snoek's face. Snoek twice told him to get his finger out of her face. Snoek reported the two inci- dents to the company's owner, who decided to terminate Sipkes' employment on Dec. 11 for bul- lying and harassment by "yelling, swearing and calling names" dur- ing the arguments with Snoek and having to be told to get his hands away from her. However, the arbitrator found that the third written notice was inappropriate, as Sipkes took rea- sonable steps to hand in the pa- perwork as Snoek had instructed. Once Snoek left the office, he was unable to follow the new proce- dure and reasonably reverted to the previous procedure. There was no attempt to defy Snoek or refuse her directions that would justify discipline, said the arbitrator, who also noted that there was no evidence Sipkes had failed to fill out work orders for repairs. The arbitrator also found there was no cause for termination. The collective agreement didn't define bullying and harassment and the B.C. Workers Compensation Act refers to actions that humiliate or intimidate. The two arguments leading up to Sipke's termination were not out of the ordinary, as they frequently engaged in yelling and swearing matches, often ini- tiated by Snoek, and no one took steps to discourage these interac- tions. However, there was one action that crossed the line — Sipkes' finger in Snoek's face, found the arbitrator. This "went beyond the regular conduct" of their argu- ments into threat of physical con- tact, though the evidence indicat- ed Sipkes didn't intend any harm and Snoek wasn't intimidated. This "single, brief transgression" provided just cause for discipline, said the arbitrator. ForshnerBrothers/Horsman Trucking was ordered to reinstate Sipkes with a three-day suspen- sion on his record. Reference: Forshner Brothers Trucking Ltd. and USW, Local 1-1937 (Sipkes). Jessica Gregory — arbitrator. Laura Snoek for employer. Jonathan Hanvelt for employee. June 28, 2019. 2019 CarswellBC 2630 Interactions not considered bullying or harassment < Shouting matches pg. 1 < Spying pg. 1 Plant operator denied spying on female co-workers 'Cloud of suspicion' after worker's wife deactivated cellphone

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