Canadian Labour Reporter

April 20, 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 this ended in July 2019. On July 10, 2019, the worker was in the dining room near the resident. At one point, the resi- dent inappropriately touched her buttocks, to which the worker immediately reacted by slapping his hand away, saying: "Don't do that," and then slapping his forearm. Two coworkers heard the slap, with one witnessing it. One of them noted the resident appeared "unfazed" and had no mark on the arm or signs of pain. The coworker who saw the slap reported it to the registered nurse in charge. The worker was upset and described the incident to the nurse, saying that even her hus- band wasn't allowed to do that. The worker was escorted out of Rideaucrest and told that what she had done was considered physical abuse of a resident. The registered nurse in charge examined the resident and found a "slightly red area near his right shoulder." She called the police, who didn't find any mark on the resident and declined to pursue an investigation. At an interview the next day, the worker was upset and said she felt "bad about hitting [the resi- dent], but it was a reaction." How- ever, management felt that the use of force was only justified if a staff member was trapped or a resident was harming themselves. In cir- cumstances such as this incident, staff were trained to step away if they were able. The worker maintained that she reacted the way she did because she was sexually assaulted, and she hit the resi- dent's arm to make him stop. Howe ver, Rideaucrest termi- nated her employment . The arbitrator agreed that the slap on the resident's arm was misconduct that violated Ride- aucrest's resident abuse policy. However, he noted that the worker was "taken by surprise by being sexually assaulted from behind" and it may be harder to control one's reaction than if it happens from the front. In ad- dition, the reaction was "pro- tective as well as angry" as her intention was to stop the "very invasive act" that had happened. The arbitrator added that the worker didn't slap the resident's face or call him names, she just told him to stop. However, the arbitrator found that the worker didn't need to slap the resident's arm to protect her- self — she could have pushed the arm away or stepped away, as she had been trained. In addition, the slap was loud enough to be heard and may have left a mark, suggest- ing some force was involved, the arbitrator said. The arbitrator also found that while Rideaucrest's poli- cy against resident abuse was zero-tolerance, it didn't mean dismissal was automatic — particularly since the worker was sexually assaulted and the resident was a known threat for such behaviour. Rideaucrest was ordered to reinstate the worker with a five-day suspension substitut- ed for termination. Reference: Canadian Union of Public Employees, Local 109 and City of Kingston. Laura Trachuk — arbitrator. Robert Little for employer. Wassim Garzouzi for employee. Feb. 25, 2020. 2020 CarswellOnt 3760 Use of force wasn't deemed worthy of dismissal: arbitrator Discrimination claims part of worker's tendency to blame others < Slapping pg. 1 November 2016. She started her probationary period on Nov. 7. Early into her probation, the employee who was training the worker told the regional manager that the worker was sometimes late and not respectful of break times. As the worker moved into more complex work, she pro- gressed slowly and had difficulty retaining information. In February 2017, the regional manager met with the worker. The worker was agitated and blamed her lateness on transit and other people. The worker also said her trainer told her that her hair was smelly, and she should use the back door for entering and leaving. The regional manager told her she was expected to be on time, and he would look into her complaint. The regional manager talked to the worker's trainer, who ex- plained that the worker had been advised of EORLA's scent-free policy and another employee who had an allergy had complained about the scent of her hair. In ad- dition, all PAs were supposed to use the back door of the lab. The regional manager found this had been explained to the worker pri- vately and no one had used the term "smelly." In February 2017, the worker complained to the manager about her common-law partner and his parents — her partner was anoth- er PA and the son of an EORLA pathologist, a relationship she had revealed at her interview and been told wasn't an issue. The worker wanted to show the manager texts to show the pressure she was un- der, but the manager declined to look at them as he felt it was inap- propriate. He referred the worker to the employee assistance pro- gram. The regional manager received reports from two other PAs in May stating that the worker wasn't following directions and trying to work on specimens that were too complex for her. She also dis- played aggressive behaviour and was deceptive about her experi- ence, both towards other PAs and in a meeting with the manager. A June 8 report detailed "a continuing pattern of slow pro- duction, lack of retention of knowledge, inability to follow in- structions and continued late ar- rivals." The worker was dismissed on June 21 for failing "to meet the expectations of your role." The worker grieved her dis- missal, claiming discrimination on the basis of her ethnicity — saying the smelly hair remark was related to her being of Indian descent — and marital status be- cause of her relationship with her partner and her attempt to call domestic abuse to the attention of the manager. The arbitrator noted that the worker had a tendency to blame other people for her failings, taking no personal responsibil- ity. Her inability to follow instruc- tions, her chronic lateness, blam- ing her problems on others, and acting aggressively demonstrated an inability to adapt to the posi- tion. EORLA's decision that she wasn't the right fit for the job was reasonable and credible, said the arbitrator. The worker's claims of dis- crimination based on ethnicity didn't hold up, as there was a le- gitimate reason for her trainer to discuss the smell of her hair and ask her to use the lab's back door. As for the worker's marital sta- tus, the manager knew about it before she was hired. The worker didn't raise the is- sue of domestic abuse to the man- ager and he wasn't obligated to look at her texts, said the arbitra- tor in dismissing the grievance. Reference: Eastern Ontario Regional Laboratory Assn. and OPSEU, Local 475. Judith Allen — arbitrator. Kecla Podetz, Tara Hristov for employer. Matthew Hrycyna for employee. Feb. 25, 2020. 2020 CarswellOnt 3764

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