Canadian Labour Reporter

April 13, 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 ARBITRATION AWARDS ARBITRATION AWARDS safety protocol. They also saw a couple of occasions when the worker didn't attach his safety lanyard — a legislated fall-pro- tection feature. They didn't see the worker urinate in the cab, though at one point the worker had his head down and his hands moving with his back to the camera. A few days later, the supervi- sor's boss told him that a car that looked like the worker's had been driving dangerously in the em- ployee parking lot. Management met with the worker and the worker provided a doctor's note explaining he had a medical condition that caused incontinence and he had wet his pants before making it to the washroom. The worker acknowledged that he listened to music on his cellphone because the radio in the cab was broken. Normally, employees could listen to the ra- dio and the worker said a previ- ous supervisor had granted per- mission many employees to use their cellphones. The worker also admitted that he sometimes forgot to reattach his lanyard after breaks, but he always quickly noticed it when he resumed working. He also admitted he had sat with one butt cheek on the control arm occasionally. He denied driving dangerously in the parking lot, as he was driving his cousin's low- slung BMW. Because of speed bumps, potholes and sewer grates in the lot, he could only drive slowly, he said. The LCBO determined that the worker had urinated at the entrance to the tunnel vehicle and this, combined with the oth- er safety violations, warranted dismissal. The employer termi- nated the worker on Nov. 20. The arbitrator found there was no evidence the worker purpose- fully urinated in the cab. The ac- tions on the video interpreted as urinating were also consistent with using his cellphone and the worker had medical evidence that he had a condition causing involuntary urination. The only culpability was that the worker didn't report his problem or tried to clean it up on his own. The arbitrator found there was evidence — through the video and the worker's admis- sion — that the worker had worked without a lanyard at- tached and sat on the control arm. The worker said forgetting the lanyard was an error, but it was "a fundamental require- ment of the job to employ the fall-restraint equipment," said the arbitrator. The worker's use of his cell- phone was also misconduct, as were stipulated by signs and em- ployee orientation, the arbitrator added. As for the unsafe driving, no one tried to identify who was driving the car and the worker's claim that he was in a car that couldn't do it wasn't challenged. As a result, the LCBO couldn't use the incident for discipline, said the arbitrator. The arbitrator determined that dismissal was excessive and ordered the LCBO to substi- tute a one-week suspension for each of working without a safety lanyard and failing to report or clean up his unintentional uri- nation, plus a reprimand letter for using his cellphone in the warehouse. Violations deserved discipline but dismissal too harsh: Arbitrator Worsening of symptoms coincided with workplace conflict < Accidental pg. 1 to use the stairs and scheduling her to work in one classroom with proximity to the washroom and office. In 2003, the worker taught at a school that was about 16 ki- lometres from her home. She went on maternity leave in 2006 and, during her leave, she and her family moved to a new home that was 29 kilometres from the school. This meant that when she returned to work, her daily com- mute increased from about 20 minutes each way to between 75 and 90 minutes in the morning and about 45 minutes in the after- noon. Public transit also wasn't an option as it would take at least two hours and if she stood for too long, she would faint. The worker took a leave of absence for the 2011-12 school year. When she returned, her school had a new principal and her classrooms were located on the second and third floors of the school. The worker had a dispute with another teacher, and she felt bul- lied and harassed. The conflict caused her stress, aggravating her FM and CFS symptoms. The worker requested an eleva- tor key as she had before, but she was told she would need a doc- tor's note. She visited her doctor and told him about pain she was experiencing during the drive to and from school. She asked for a note that was specific to "how many kilometres she could drive," estimating about 15. The worker provided a note on Sept. 10, 2012, requesting access to an elevator, all of her classes in the same classroom, and close proximity to the wash- room and office. The note also stated that "she needs to work at a location that is within 15 kilo- metres of her current residence" to prevent "a relapse of a debili- tating condition." The principal said that many of the in-school accommodations could be met. However, on Oct. 19, a media- tion with the other teacher didn't go well and the worker didn't re- turn to work afterwards. On Oct. 29, the worker saw her doctor with worsening symptoms and the doctor completed a func- tional abilities form that reiter- ated the in-school accommoda- tion requirements as well as the requirement she work within 15 kilometres from her home. The worker remained off work be- cause she felt "unsafe because the situation [with the other teacher] was not resolved." The TDSB declined to put the teacher on a list for a fa- cilitated transfer — mid-year transfers were "extraordinar y and genuinely disruptive to the learning process" — and the worker filed a grievance claiming the TDSB refused to accommodate her. The arbitrator found that the worker had a disability. However, the evidence indicated that she didn't suffer an adverse impact from her commute that was relat- ed to her disability, as she was able to successfully make the drive for four years before her 2011 leave of absence. The worsening of her symp- toms coincided with the conflict with the other teacher in Sep- tember and October 2012 and it was likely the teacher wanted a transfer for a shorter commute and to get away from the prin- cipal and the other teacher, said the arbitrator. The arbitrator also noted that the 15-kilometre distance recom- mended by the doctor was based on discussion with the worker and not medical evidence. The arbitrator concluded that the TDSB didn't need to transfer the teacher to fulfill its accommo- dation obligations.

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