Canadian Labour Reporter

7 Canadian HR Reporter, a HAB Press business 2019 CANADIAN LABOUR REPORTER ARBITRATION AWARDS of five days' pay she was being com- pensated for in the settlement. The worker had some concerns and re- fused to sign, but the union agreed to the proposed terms. The worker claimed that after she left the mediation, she didn't know what would happen to her grievances and didn't try to find out. The union mailed her the details of the settlement with a reiteration that she was obligated to not discuss the settlement. In April 2018, the worker sent a letter to the board's director of education outlining the uncer- tainty she felt from the settlement and that for the past year, her work had been "a living hell" under the operations supervisor. She includ- ed a cheque equal to five days' pay, saying that accepting the money didn't feel right and, by disclosing the results of the settlement, she had to return it. Soon, the school board learned that the worker had made more comments about the operations supervisor that undermined his authority. Various employees reported that the worker had re- peatedly complained about her workplace troubles and the op- erations supervisor. The school board tried to interview the worker on May 23, 2018, but she refused to answer questions. It was decided to terminate the worker's employment based on the worker's previous discipline for the same misconduct, the dis- closure of information related to the settlement in the letter to the director and the worker's failure to co-operate in the investigation. The worker grieved the termi- nation, denying she said anything disparaging about the operations supervisor and she had no ill will towards him. The arbitrator found that based on the reports of multiple employ- ees — who "did not invite or appre- ciate the comments" — the worker continued to make disparaging comments about the operations supervisor. In addition, the work- er's denial and assertion that she had no ill will towards him didn't seem credible when she had made comments about him previously and had claimed in the letter that her work had been "a living hell." The arbitrator also found the letter to the director of educa- tion put the HR department and her own supervisors in a negative light to the board's most senior of- ficer who had not been involved in the settlement. However, the arbitrator dis- agreed that the worker disclosed details of the settlement. It was like- ly the director had some knowledge of the settlement already and no harm was done. In addition, the set- tlement itself contained the remedy for such a disclosure — return of the five days' pay and reinstatement of the suspension. There was no indication the school board could also find it a separate disciplinable offence, said the arbitrator. Regardless, the fact the worker continued to engage in miscon- duct about which she had been previously warned and disci- plined, with no evidence of provo- cation, was serious, said the arbi- trator. In addition, she refused to accept responsibility or co-oper- ate in the investigation, making it unlikely she would not do it again. The dismissal was upheld. Reference: CUPE, Local 1480 and Limestone District School Board (MacLeod-Kane). Jesse M. Nyman — arbitrator. Vince Panetta for employer. Jessica Greenwood for employee. Nov. 4, 2019. 2019 CarswellOnt 18003 remained off work for the next couple of years. In late 2008, the city tried to contact the worker to discuss her availability for work. However, it was unsuccessful and still couldn't get ahold of the worker after sev- eral attempts. The city decided to terminate her employment effec- tive March 23, 2009. The city and the union reached an agreement for the worker to be reinstated with pay once she provided satisfactory medical documentation "identifying her current permanent limitations, restrictions, from a qualified treat- ing physician." The city would then consider the worker for "suitable employment opportunities, while respecting her limitations/restric- tions, and within the city's normal priority placement process to ac- commodate employees with doc- umented disabilities." The city added the worker to its permanent accommodation database (PAD) and notified the worker with a letter stating that she should make herself available for any assessments and training and ensure the city had up-to-date information. The worker didn't respond to the letter or any subsequent phone calls, so the city put its accommo- dation efforts on hold. However, she remained an employee until Oct. 22, 2012, when her employ- ment was terminated in "error." After another grievance, the city reinstated her in April 2013. The city found the worker a po- sition as a part-time receptionist at a long-term care home in Novem- ber 2013. After a seven-month trial period, the city determined it wasn't a suitable accommodation. The worker was unable to re- turn to her personal support worker position due to her restric- tions and the city was unsuccess- ful in finding another job for her over the next couple of years. As a result, it terminated her employ- ment on June 13, 2016 for frustra- tion of her employment contract. The worker grieved this latest termination, arguing the city failed to "sufficiently discharge its duty to accommodate obligations," as evidenced by the fact it had termi- nated her employment three times. The arbitrator found that the worker had no entitlement to com- pensation for the 2016 termination as the worker didn't co-operate with the accommodation process — she didn't respond to the city's attempts to get information and was difficult to contact. In addi- tion, there was no success in find- ing the worker a suitable position in the three-year period from 2013 to 2016, despite the placement of the worker in a trial position. The arbitrator also pointed out that the 2009 settlement required the worker to supply updated medical information — a point that was reinforced by the letter confirming the worker was on the PAD. Despite the dearth of direct contact, the worker would have been aware of the expectations and the accommodation process. The city made sufficient attempts to contact the worker and the worker never reached out to in- quire about her employment sta- tus or her grievances. However, during the period from the 2009 settlement to her second termination in 2012, the city should have made additional efforts to contact the worker and the union, rather than putting ac- commodation on hold after not receiving medical information, said the arbitrator. The city was ordered to pay the worker $5,000 for not satisfying the duty to accommodate before the worker's second termination in 2012. The grievance for the third termination was dismissed. Reference: Ottawa (City) and Ottawa-Carleton Public Employees Union, Local 503 (Sismon). Brian Sheehan — arbitrator. Margaret-Marie Steele for employer. Dina Mashayekhi for employee. Sept. 11, 2019. 2019 CarswellOnt 17452 Third dismissal was reasonable, more should have been done < Frustration pg. 1 < Complaining pg. 1 Employee warned, disciplined about disparaging remarks Supervisor made life "a living hell," claimed worker.

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