Canadian Labour Reporter

8 Canadian HR Reporter, a HAB Press business 2020 March 9, 2020 ARBITRATION AWARDS the floor manager and told her Stoll had hit her on the shoulder. Manalastas showed the floor manager her shoulder but the manager didn't see any injury. The floor manager told Manalastas to see security and reported the incident to the as- sistant director of housekeeping. The assistant director then spoke with Stoll, who said Manalas- tas had provoked her by calling her name and tapping her on the shoulder. Stoll said she respond- ed by hitting Manalastas on the shoulder and Manalastas hit her back. The assistant director of house- keeping met with Manalastas, who said she had called Stoll's name to say hello and touched her on the shoulder. Stoll responded by hitting her hard on her own shoulder, so she hit Stoll back be- cause she was shocked and upset — demonstrating it as a push with the palm of her hand. The Royal York investigated the matter, interviewing both women and a third housekeeping assis- tant who witnessed the incident. There was no evidence any guest witnessed the altercation or com- plained about it. The hotel suspended the two women for 30 days without pay for violence in the workplace. Stoll missed 22 shifts and had difficulty paying her bills, while Manalastas missed 25 shifts and had to bor- row money to pay her rent. Stoll maintained that she had not hit or pushed Manalastas and only tapped her in response to the latter's tap on her shoulder. Manalastas said she had misspo- ken to security — because English wasn't her first language — when she told security she had hit Stoll back and instead it was just an at- tempt to block Stoll from hitting her again. The arbitrator noted inconsis- tencies with Manalastas' version of events, particularly between her initial report to security that she retaliated by hitting Stoll again and her later claim it was just a block, as well as the fact she spoke English regularly. Stoll's account also wasn't credible, as her insis- tence that they only tapped each other when the other accounts said otherwise was likely an at- tempt to minimize culpability. The arbitrator found that there was a physical altercation involv- ing "tit-for-tat" slapping that wasn't intended to cause injury. However, though Stoll was en- titled to dislike Manalastas touch- ing her, the reaction by hitting her wasn't appropriate and Manalas- tas' reaction by hitting Stoll back wasn't either. The arbitrator also found that such an instance of workplace vio- lence was deserving of discipline, but it wasn't premeditated and neither worker intended to cause serious harm. Though the Royal York was concerned about guests seeing such an altercation, there was no evidence any did. The arbitrator also considered the financial hardship the suspen- sion put on both employees, as Manalastas was unable to pay her rent and Stoll was unable to pay all her bills. The arbitrator ordered the sus- pension reduced to 20 days, not- ing that had either worker shown "true remorse and an understand- ing of their role in the altercation," their suspensions may have been reduced further. Reference: Unite Here! Local 75 and The Fairmont Royal York Hotel. Jesse Nyman — arbitrator. Trevor Lawson and Victor Kim for employer. Tyler Boggs, Michael Mandarino, Michael Thorburn for employees. Feb. 18, 2020. 2020 CanLii 11579 site. As he neared the vehicle, he detected an odour that he iden- tified as cannabis. The odour strengthened as he got closer to Prime's vehicle and he thought he saw a smoky haze inside, though it was still dark, and the windshield was cracked. Prime was sitting inside and when he saw the project manager, he made a sudden movement and appeared to conceal something under the seat. The project manager didn't say anything and continued to the construction site. Since Prime wasn't supposed to be performing dangerous work in the elevator shaft, he left it and figured if Prime appeared to be impaired or oth- erwise acting unsafe, his partner would intervene. A few hours later, the project manager ran into Prime's super- visor and told him that he had smelled cannabis around Prime's vehicle that morning and saw Prime trying to hide something. The supervisor met with the branch manager and they con- sulted the company's drug and alcohol policy, which stipulated that "the use of non-prescribed drugs, alcohol or cannabis during work hours is strictly prohibited." They determined that Prime had breached the policy and its zero- tolerance provisions. They drafted and printed out a termination letter and the super- visor brought it to Prime. By this time, more than four hours had passed since Prime had been seen in his vehicle and he had been working all morning with his partner with no signs of impairment observed by anyone. Prime denied that he had been smoking marijuana that morn- ing, though he acknowledged that he used it for medical reasons outside of work. He showed the supervisor a plastic bag of mari- juana in his car and suggested the project manager had smelled cigarette smoke — he had been smoking a cigarette while sitting in his vehicle that morning — or a lingering marijuana smell from past use. The arbitrator found that there was no real evidence that Prime breached the policy and con- sumed cannabis at the worksite. The project manager didn't actu- ally see Prime commit the mis- conduct, as it was dark, the wind- shield was cracked, and it was hazy inside the truck. He didn't see Prime smoking anything, let alone marijuana, the arbitra- tor said, adding that the haze in- side the vehicle was explained by Prime's cigarette smoking. The arbitrator also found that while marijuana has a distinct smell, there was no evidence the project manager had much ex- perience with it and could dis- tinguish it from other possible odours that he may have smelled that morning. In addition, neither Prime's partner nor anyone else noticed a marijuana smell coming from Prime or his vehicle. "I believe that it is quite plau- sible that the smell which [the project manager] noticed was a combination of stale marijuana and freshly smoked tobacco," the arbitrator said. The arbitrator also noted that Prime demonstrated no signs of impairment during the hours he worked that morning with his partner or when he was presented with the letter of termination — and he was allowed to work for several hours and then drive home in his vehicle. The arbitrator determined there was no evidence that Prime consumed cannabis at work. Kone was ordered to reinstate him with no loss of seniority and full com- pensation for loss of pay. Reference: Kone and International Union of Elevator Constructors, Local 125. Eric Slone — arbitrator. Patrick Moran for employer. Raymond Larkin for employee. Jan. 18, 2020. 2020 CanLii 2377 (N.S. Arb.). Manager thought he smelled marijuana in worker's car < Assumptions pg. 1 < Slap-happy pg. 1 Arbitrator reduces suspensions citing lack of intent to harm

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