Canadian Labour Reporter

8 Canadian HR Reporter, a HAB Press business 2019 November 25, 2019 ARBITRATION AWARDS work. The College and Associa- tion of Registered Nursed of Al- berta (CARNA) investigated the last two suspensions and inter- viewed the worker's unit manager in April 2017. During the interview with CAR- NA, the unit manager shared un- substantiated information about the worker's marital situation and other allegations, though she ac- knowledged it wasn't proven. The unit manager had heard this in- formation from an employee who had been told the information by one of the worker's colleagues. The employee had told the unit man- ager about it because she thought it could impact the worker's perfor- mance and wellbeing. CARNA then interviewed the worker, who was shocked that her personal story had been shared. She knew who had revealed the information and said in the inter- view that she had trusted her col- league and the story had "gotten twisted, and then escalated." The worker also grew to be- lieve that the same colleague was checking up on her, as she was sometimes locked out of the elec- tronic patient files. On Sept. 7, 2017, a greeting card for the colleague was passed around. The worker wrote "All the best," then later wrote four phrases in which the first letters vertically spelled out "NARC" and were highlighted. The next day, the nurse who had organized the card signing brought it to the unit manager to show her and get a new card for co-workers to sign. The worker was placed on administrative leave with pay while AHS investigated. AHS interviewed the worker about it and the worker denied it, saying she didn't "know how to spell NARC." However, the nurse who organized the signing described the worker's signing of the card in an interview. On Sept. 21, AHS termi- nated the worker's employment. The worker acknowledged that she displayed a lack of profession- alism and may have put the other nurse "in a bad spot," but said she didn't agree with her account of the card signing. She also said that she had not been herself and ad- mitted at the arbitration hearing that she had written the phrases with "NARC" spelled out. How- ever, she and the union argued ter- mination was excessive. The arbitration panel noted that the worker's signing of the card occurred five months after the worker learned that her per- sonal story had been shared with the unit manager and CARNA. Given this passage of time, the workers' misconduct couldn't be viewed as a provoked reaction, said the panel. The panel also found that the worker "demonstrated clear in- tent" even after she had multiple warnings that further misconduct would result in more discipline. In addition, the worker made no ef- fort to fix the situation and tried to cover up her misconduct in the investigation. This dishonesty and failure to acknowledge respon- sibility, along with her past disci- pline, provided just cause for dis- missal, said the panel. Reference: Alberta Health Services and UNA (Kowalski). Rick Wilson — arbitrator chair. Sylvie Lang, Marisha Nozdryn- Plotnicki for employer. Marilyn Vavasour, Laura Bowen for employee. Oct. 1, 2019. 2019 CarswellAlta 2314 for surgery on her left hand in No- vember 2015. This time, she was off for seven months, returning on June 20, 2016 with the same modified duties. Though she only worked for three hours per day when she returned, Canada Post's extended disability program (EDP) topped up her pay. The EDP benefits ended on Dec. 14, 2016 and Canada Post referred Cook for a functional ca- pacity evaluation (FCE). The FCE determined that the worker "does not meet the demands for the po- sition" of RSMC. The worker continued work- ing with the modified duties. The benefits provider sent Canada Post a statement of the worker's restrictions — limits on gripping and grasping with her finger and thumb and fine manipulations to "rare to occasional basis 1 to 33 per cent of workday" — to see if the corporation could accommo- date her at full-time hours. Cook and Canada Post agreed that she could try the duties of a PO4 position — a sorting posi- tion where an employee performs one duty for a week at a time and is rotated through four different duties, with the light duties pro- viding a break from physically de- manding work. However, on the day she was to start the local area superintendent sent her home with pay for two weeks. Cook thought the time was needed for an assessment of the PO4 duties, but instead Canada Post informed her it couldn't continue her previ- ous accommodation because it had aggravated an existing shoul- der condition. Cook's pay would stop on March 13 and "an appropriate accommodation will be deter- mined," said the corporation, add- ing that all collective agreement benefits had been exhausted. Eventually, Canada Post sent Cook formal notification that she was on sick leave without pay un- der the collective agreement. She provided a doctor's note recom- mending she return to work with accommodation of her functional restrictions at full-time hours. A job site assessment was done, which recommended Canada post provide Cook with alternate duties than the RSMC position, which required "frequent fine- finger dexterity." A consultation meeting was held in October 2017 and Canada Post said there was no work Cook could do in Yellowknife. The union raised the option of a PO4 position but the corporation said limiting her to only the light duties in the PO4 rotation would deprive exist- ing employees in the rotation the break from heavy duties. Canada Post suggested Cook expand the geographic area she would consid- er for work, but the union insisted there was local work for which she could be accommodated. The arbitrator found that Can- ada Post initially accommodated Cook in modified RSMC duties until couldn't do them any longer and the assessment determined she couldn't meet the demands for the position. Cook's inability to deliver or handle certain types of mail ruled her out of the bona fide occupational requirements for the position. The arbitrator also found that Canada Post was open to Cook do- ing PO4 duties, but the informa- tion it had was that Cook wasn't able to perform the full duties of the position — and it would be undue hardship to deprive exist- ing employees in the rotation from the chance to perform the light du- ties, as "they themselves needed as relief from the more demanding physical aspects of the PO4." The arbitrator determined that Canada Post met its accommoda- tion obligations and didn't breach the collective agreement by not accommodating Cook in the PO4 position. Reference: Canada Post Corp. and CUPW (Cook). Arne Peltz — arbitrator. Melanie Wood for employee. October 9, 2019. 2019 CarswellNat 5848 Mail carrier suffered restrictions, wanted lighter duties < Canada Post pg. 1 < Calgary hospital pg. 1 Unflattering greeting card message deemed inappropriate The worker said she didn't "know how to spell NARC."

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