Canadian Labour Reporter

7 Canadian HR Reporter, a HAB Press business 2020 CANADIAN LABOUR REPORTER ARBITRATION AWARDS grade-point average. The next day, another new nurse job-shadowed Diegues. He also asked this nurse if she had a boyfriend and when she replied that she was in a long- distance relationship, he made a comment that her boyfriend was probably having sex with "other girls back home." Diegues continued with more personal questions including where she had gone to school, what kind of car she drove, what her parents did for a living and what her grade-point average was. The nurse felt uncomfortable and thought his orientation was "fear- based" — he was critical about how she worked, pointing out things she shouldn't do because management would "get her." While orienting the second nurse, Diegues also interrogated other employees and a patient after someone reported a medication error he had made. He commented to the new nurse that he didn't want to hear about her reporting anyone. Two months later, on Nov. 14, Diegues was assigned an- other new nurse for orientation. As with the other two, he asked her about her boyfriend and car, and he focused on things she shouldn't do for risk of getting in trouble. At one point, Diegues sat in a chair and watched the nurse as she made a patient's bed and mocked the way she did it. He also used profanity and took an unau- thorized coffee break. The hospital learned of Dieg- ues' behaviour and investigated. In an interview he insisted that "young nurses needed to under- stand the gravity of their role and that was best done by threaten- ing them to get into trouble with management if they did not work to the standards expected." At a second interview, Diegues acknowledged his comment to the second nurse about her boyfriend having sex with others but didn't show any remorse or appreciate the seriousness of his actions. The hospital determined Diegues had violated its code of conduct and workplace harassment policies as well as human rights and occupational health and safety legislation. It terminated his employment for cause. The arbitrator noted that some of Diegues' misconduct, such as asking about schooling and cars, would be minor in isolation. However as a whole, his behaviour was inappropriate and deserving of discipline. The arbitrator found it wasn't appropriate for a man to "pepper" young women with questions about personal relationships and make lewd comments. It was also inappropriate to "instill a climate of fear in new employees about their relationships with management" and create a toxic work environment for them, the arbitrator added. However, the arbitrator noted that though Diegues initially failed to acknowledge his misconduct, he agreed at the hearing that he was wrong. Since he had no prior discipline and the three nurses were no longer at the hospital — eliminating the chance of Diegues encountering them — the arbitrator ordered the hospital to reinstate him with the time since his termination (almost 14 months) serving as a suspension on his record. Reference: Ontario Nurses' Association and Hotel-Dieu Grace Healthcare. Norm Jesin – arbitrator. Rob Dobrucki for employee. Nancy Jammu-Taylor for employer. Feb. 18, 2020. 2020 CanLii 11706 the hospital weren't supporting her and she began missing a lot of work by early 2014. In November 2014, she was entered into the NSHA attendance support program (ASP) — a program that featured steps towards improving attendance and discipline up to dismissal if there was no improvement. After six months, Hart's ab- sences were one-and-one-half times the average of comparable employees, so she was progressed to the second step of the ASP with a written caution that if she didn't improve significantly it "may affect your continued employment." Hart was evaluated every six months and her absences remained high. She was moved through the ASP over the next couple of years, so by June 2017 her absences were still about double the average, she was in the fifth step of the ASP, and her status had been reduced to 0.8 of full-time. In 2018, the NSHA changed the ASP so reviews were triggered if an employee's absences exceed four per cent of worked hours. Hart's absences over a six-month period in 2017 were 11.4 per cent of worked hours, so her designation was further reduced to 0.5 of full time. Hart applied for a job posting as a pharmacy practice assistant at the provincial bio depot in Dartmouth, N.S. — a facility that handled and distributed vaccines and other immunization agents. She was rated the highest scoring applicant in the interview pro- cess, but the NSHA determined that her attendance issues could be a problem. The posted job was fast-paced and required "good at- tendance in current and past em- ployment" because there were no casual employees to fill in during absences. An employee with less senior- ity was awarded the pharmacy practice assistant position and Hart filed a grievance. The union argued that the NSHA applied a "vague and imprecise standard" when it used Hart's attendance record against her for the purpose of hiring for the position and the collective agreement required the NSHA to award a position to the applicant with the most senior- ity when applicants "are of equal merit." The arbitrator noted that the collective agreement allowed for seniority to come into play only when candidates were of equal merit. Since the agreement didn't specifically define "merit," the NSHA was entitled to use "rea- sonable considerations pertain- ing to the candidates' suitability for the job." For the pharmacy practice as- sistant position, the NSHA relied on the individual to show good, "even superior attendance" be- cause there were few others who could fill in. This was different from Hart's position in the Hali- fax Infirmary pharmacy, where there was a pool of employees who could fill in. Therefore, it was reasonable for the NSHA to con- sider good attendance a require- ment for the pharmacy practice assistant job, said the arbitrator. The arbitrator also found that "past attendance is a valid predic- tor of future attendance" so Hart's history of absenteeism was a rea- sonable factor in determining her merit and suitability for the post- ed position. In addition, the arbitrator not- ed that Hart had been reduced to part-time status because of her progression through the ASP and wasn't eligible to work full-time until she successfully completed the ASP. This made her ineligible to accept any full-time position within the NSHA and there was no way of predicting when she might become eligible. The grievance was dismissed. Reference: Nova Scotia Government and General Employees Union and Nova Scotia Health Authority. Erik Slone – arbitrator. Patrick Saulnier for employer. Andy Nielsen for employee. Oct. 28, 2019. 2019 CanLii 113317 (N.S. Arb.). Nova Scotia worker had more seniority than winner of job post < Halifax pg. 1 < Discipline pg. 1 Inappropriate comments, fearmongering with new recruits

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