Canadian Labour Reporter

March 23, 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 March 23, 2020 ARBITRATION AWARDS According to Marquis, he made incidental contact with the student as he tried to grab the ball. Howev- er, the student and another student claimed he picked the student off the ground and shook him. As a result of the altercation, Marquis was charged with assault. The Ontario Court of Justice didn't accept Marquis' charac- terization of the physical contact with the student as incidental but found there was no evidence that he shook the child. The court determined Marquis placed his hands under the student's arms, picked him up, and lifted him a short distance before taking the ball into the school. The court found Marquis guilty of assault but noted that Marquis "didn't go very far across that line" of legally appropriate be- haviour for a teacher interacting with a student. Stating that it was "a very brief and minimal factual situation for an assault," the court granted an absolute discharge. The TDSB launched its own investigation into the altercation once the legal proceedings were completed. The investigation determined Marquis had lifted the student off the ground and shook him, which was a violation of its policies related to mistreat- ment and abuse of students. It also found Marquis failed to accept responsibility for his behaviour by continuing to insist he only touched the student incidentally — which also forced the student and the other student who wit- nessed the incident to go through the ordeal of testifying in the criminal case — and didn't live up to the Ontario College of Teach- ers' ethical standards. On Dec. 21, 2016, the TDSB suspended Marquis for 10 days, required him to attend anger- management counselling, and re- view its policies. The union grieved the suspen- sion, pointing out that the suspen- sion letter stated Marquis had lift- ed the student and shook him, but it had been established in court that Marquis had not shaken the student, which was the more seri- ous element of the assault. The arbitrator noted that "any assault or inappropriate use of physical force by a teacher upon a student indisputably constitutes misconduct." However, not all assaults are "of a similar nature." Marquis' behaviour was inap- propriate and deserving of dis- cipline, but it was important to note that the court found it didn't go "far across the line" in terms of seriousness. As a result, the TDSB should not have disciplined Marquis as if he had shaken the student or committed serious as- sault, said the arbitrator. "It is the fact that the employer mischaracterized the particular nature of the assault committed by [Marquis] that argues for an alteration in the imposed penalty," said the arbitrator. "Given that the 10-day suspension was ostensibly predicated on this rather signifi- cant mischaracterization of [Mar- quis'] misconduct, it would not be appropriate to affirm the quan- tum of the penalty issued." The arbitrator reduced the suspension to five days and ordered the TDSB to compensate Marquis for the other five days of the original suspension. Reference: Toronto District School Board and Elementary Teachers' Federation of Ontario. Brian Sheehan — arbitrator. Kathleen Tate for employer. Mark Wright for employee. Jan. 23, 2019. 2019 CanLII 28245 (Ont. Arb.). laid-off employees had more se- niority than Muldoon and chose to displace him under the collective agreement's bumping clause. The clause stated that an employee be- ing laid off "will have the alterna- tive of being laid off or displacing an employee with less seniority, in an alternate classification in the same or lower salary range, pro- vided the employee designated for layoff has the skill, experience, and capacity to perform the required work. In these circumstances a reasonable period of familiariza- tion will be provided." The period of familiarization was generally about four weeks. The same clause allowed Mul- doon the option of bumping an- other employee with less senior- ity. He selected six jobs that he felt qualified for — five in the medical isotope area where he had worked for all of his seven years with Nor- dion and one was the position of junior source production techni- cian (JSPT), an entry-level job in the gamma technologies area. Nordion found Muldoon didn't have enough seniority to move into any of the medical isotope jobs. As for the JSPT position, it found he didn't have the skill or experience to move into the gam- ma technologies area and refused to bump him into that job at the expense of employees who had less seniority but were more quali- fied. The JSPT position required working with different equipment than the medical isotope area and electromechanical experience. In addition, safety was a priority with the position and the Cana- dian Nuclear Safety Commission required a full training program that would take longer than the familiarization period allowed by the collective agreement. Muldoon's last day with Nor- dion was Oct. 31. Not long after his layoff, he found another job with higher pay than what he had earned with Nordion. As a result, he re- jected multiple offers of recall from Nordion. However, he grieved the company's decision not to bump him into the JSPT position. Muldoon argued much of the training involved skills he had from his medical isotopes work and he could get up to speed within the four-week period of fa- miliarization. He demanded com- pensation for losses incurred until he began his new job. The arbitrator noted that the collective agreement allowed dis- placed employees to bump into a new job if they had "the skill, experience, and capacity to per- form the required work." While a certain level of disruption should be expected, employees bump- ing into new positions didn't have the right to full training under the collective agreement. Therefore, employees looking to take over another position due to senior- ity would have to have "at least the present ability to perform all the major components of the job at a minimum level of competence." "Familiarization differs from training: it is the difference be- tween learning new skills and abil- ities (training) and learning the details and environment of a new job in which the employee will use existing skills (familiarization)," the arbitrator said. The arbitrator determined that, although Muldoon "was a valued employee, motivated to learn new tasks, with the ability to adapt quickly to new situations," it was reasonable for Nordion to take the position that any employee who had never worked in the gamma technologies area would be un- able to perform the JSPT position without extensive training — due to safety concerns, Muldoon's lack of qualifications, and regulatory training requirements. Reference: Nordion (Canada) and Public Service Alliance of Canada, Local 70367 (Union of National Employees). Lorne Slotnick — arbitrator. Jacques Emond for employer. Aaron Lemkow for employee. Feb. 25, 2019. 2019 CanLII 14457 (Can. Arb.) Collective agreement clause didn't include training program < Bumping pg. 1 < Altercation pg. 1 Educator shook student after lifting him: School board

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