Canadian Labour Reporter

January 27, 2020

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 2020 January 27, 2020 ARBITRATION AWARDS 17. They told her that the tone of her email was unprofessional and warned her to be more cau- tious. Carrasqueiras then filed a complaint that she had been ha- rassed, bullied and threatened in the meeting. Carrasqueiras said the warn- ing was designed to give her stress and harm. She claimed she was "afraid of everything that can hap- pen to me, or even my family" and asked for "immediate assistance for protection of physical and psy- chological harm." Sunwing's investigation found that Carrasqueiras' "reports of personal danger to her and her family are disproportionate to the intended purpose of the dis- cussion with [management] on March 17, 2016." It also concluded there were no threats of physical violence and she acted unreason- ably towards her exchanges with management. Carrasqueiras booked off sick on April 18 and later provided a medical note stating she was cleared to return to work on May 30. Sunwing requested further medical information before re- turning her to work and asked her to meet with an aviation medical specialist for further assessment. The union filed a grievance claim- ing Sunwing violated the collec- tive agreement by not returning Carrasqueiras to work. Carrasqueiras initially agreed to meet with the specialist but then cancelled. Sunwing advised her she would be held out of ser- vice until she obtained clearance from the specialist, which the union grieved. An arbitrator directed Car- rasqueiras to disclose medical records to the specialist for the purposes of resolving the two grievances. After seeing a psy- chological assessment report, the specialist agreed Carrasqueiras was fit to return to work. However, Sunwing still wasn't comfortable returning Car- rasqueiras to work. Mediation was unsuccessful at resolving anything so Sunwing terminated Carrasqueiras's employment ef- fective Feb. 9, 2018 for "your false and overzealous complaints and allegations of physical threats, in- timidation and conspiracy against members of management." The airline also said Carrasqueiras had "broken the trust essential to our customer safety-based relation- ship and made continued employ- ment untenable." The arbitrator found that there was no evidence of harassment at the meeting and the warning was clearly about email etiquette. Sun- wing's conclusion that there was no harassment was reasonable. "The conversation was a rea- sonable exercise of a management responsibility to inform, advise and coach an employee," said the arbitrator. "[Carrasqueiras] per- ceived the conversation as a threat where no threat was intended or delivered." The arbitrator also found it was reasonable for Sunwing to hold Carrasqueiras out of service without further medical evidence given her safety sensitive role and the "exaggerated reaction to her manager and co-workers in her reports of threats of physical and psychological harm." Sunwing was entitled to request an assess- ment from a specialist because Carrasqueiras' behaviour raised concerns about her fitness for duty as a cabin safety manager, said the arbitrator. Finally, the arbitrator deter- mined Sunwing had just cause to dismiss Carrasqueiras because "her persistent and unfounded allegations" constituted "egre- gious conduct that has destroyed the employment relationship and trust that is essential in that re- lationship, particularly in safety sensitive positions such as that held by [Carrasqueiras]." Reference: Sunwing Airlines and CUPE, Local 4055 (Carrasqueiras). Jennifer Webster — arbitrator. Simon Mortimer for employer. Paul Zamperin for employee. Jan. 17, 2019. 2019 CarswellNat 4852 On July 30, 2019, Karleen's coworker agreed to work in the sanitation department for his shift, leaving Karleen with one other coworker on the afternoon shift. An export order of 1,700 boxes was to be pulled from the freezer, stamped and loaded. The shipping supervisor asked Karleen to use the High Reach — a type of forklift — to pull the order, a task usually performed by the co-worker who was work- ing in sanitation. The supervisor thought Karleen had High-Reach certification, but Karleen didn't and hadn't used the equipment in a production capacity. He ex- pressed reluctance, but the su- pervisor believed it was because it was cold work in the freezer. After a few hours, the super- visor left at the end of his shift. Eventually, Karleen's one remain- ing coworker left to make a deliv- ery, leaving Karleen to work alone with nominal supervision from the sanitation supervisor. The next morning, the shipping supervisor found boxes of product that were supposed to have been part of the export order on and around a pallet. The supervisor and an HR generalist viewed footage from surveillance cameras and saw that there were two hours when Karleen didn't perform any productive work, including leaving the plant for his meal break, spending 39 minutes on his cellphone outside, 14 minutes in the employee locker room and other periods when he wasn't visible. Karleen explained that he had gone home to eat his lunch and stopped at a store to buy energy drinks. There was an unwritten expectation that employees working alone would inform someone if they left the plant, but there was no official policy on it or preventing employees from leaving for a meal break. Karleen also reported that he had dropped a skid of 36 boxes of product onto the High Reach's operator cage above his head, after which he texted the assistant shipping supervisor to say he wasn't comfortable doing any more. He said he was "terrified" and didn't know what to do with the boxes of product that had broken open. Karleen also said that after he returned from his meal break, he couldn't stamp the pulled export order because he didn't have the designated stamp number. He made sure the machines were charging for the day shift, took care of the garbage and some housekeeping, and performed some tasks on the office comput- er for the rest of his shift. Sofina dismissed Karleen on Aug. 1 for time theft and leaving the plant when there was no other employee present. The arbitrator found that Karleen was deserving of discipline for "being thoughtless- ly unproductive on paid time" but his misconduct wasn't time theft — which came with an "inherent character of deliberate, perhaps planned, and clandestine activity." Karleen didn't leave early and wandered around in view of the cameras, so he wasn't trying to hide it. In addition, he started out trying to do the work he was assigned and only stopped because he was shaken from the fallen pallet, said the arbitrator. The arbitrator also noted that Karleen shouldn't be disciplined for leaving the premises for his meal break, as there was no offi- cial policy against it. The arbitrator determined that dismissal was too exces- sive and substituted a two-week disciplinary suspension and com- pensation for lost pay. Reference: United Food and Commercial Workers International Union, Local 1518 — Industrial Sector and Sofina Foods (Lilydale Division). Arbitrator— James Dorsey. Gradin Tyler for employer. Chris Buchanan for employee. Dec. 3, 2019. < Time theft pg. 1 < Harassment pg. 1 Employee's reactions to management warning 'exaggerated' Worker dawdled after stopping task that made him nervous

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