Canadian Labour Reporter

Another township employee sitting near Mills heard him and a coworker saying that they thought the wellness day con- cept was stupid. He heard Mills say about the acting director — who wasn't at the meeting — that he "would like to take her down a side road and bash her head with a rock." The employee was shocked, but didn't report it to management because he was worried about retribution. How- ever, two weeks later at a perfor- mance evaluation, he mentioned the comment as an example of a toxic work environment at the garage. The employee reluctant- ly wrote a report on the incident at his supervisor's urging. The township investigated by interviewing some of the em- ployees who were at the meet- ing. The employee who wrote the report confirmed his ac- count and a summer student said she also heard the com- ment. Two other employees said they hadn't heard anything and the coworker to whom Mills had been talking said he didn't recall any discussion of the wellness day. Mills was interviewed but changed his story, first denying he made the comment while an- other time saying he didn't recall. He later denied talking negative- ly about the wellness day and said he wasn't "that type of person" to threaten physical violence. When the acting director heard about the comment, it re- minded her of an incident three months earlier when she had dis- ciplined Mills and he was visibly angry and shaking, telling her he had to leave work "or he would do something he would later re- gret." The township dismissed Mills on July 4 for uttering a threat against a manager. The arbitrator found that neither of the employees who reporting hearing the comment had any reason to make up a story making Mills look bad, as they didn't work closely with him and were new. In fact, the reporting employee only men- tioned it two weeks later when prompted, so it was unlikely he wanted to cause trouble. On the other hand, the coworker to whom Mills was talking was evasive and not credible when he said he didn't recall discuss- ing the wellness day, as it was covered in the meeting. The arbitrator found that Mills made the comment threat- ening violence against the act- ing director. The comment fit the Occupational Health and Safety Act's definition of work- place violence — "a statement or behaviour that it is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a work- place, that could cause physical injury to the worker." The arbitrator also found that Mills "had several opportunities to tell the truth" but continued to deny it. In addition, he was "a low-seniority employee with a long disciplinary record" — which was still valid because the sunset clause only wiped clean discipline after two years free of any discipline, said the arbitra- tor in upholding the dismissal. Reference: Loyalist (Township) and CUPE, Local 2150. Lorne Slotnick — arbitrator. Steven Menard for employer. Christine Lang for union. July 14, 2020. 2020 CarswellOnt 9878 Witnesses who reported hearing comments credible No job was ever made available or offered to worker less-intensive jobs, including that of a watchman, after he recovered from surgery in 2013. The watchman position was believed to be suitable for Malen- fant's restrictions and he started out working alongside another employee. However, on the first day he worked alone in September 2013, a steel door blew back on his hand and injured him. He was un- able to return to work. In April 2014, the Ontario Workplace Safety and Insurance Board (WSIB) determined that Malenfant was approaching max- imum medical recovery. He was able to perform light duties with permanent restrictions. Another WSIB report following surgery that October indicated he could work in a sedentary position. However, Ryam didn't contact Malenfant for a possible return to work and he remained off work until a WSIB return-to-work transition specialist contacted him in August 2016. Ryam ad- vised that the only available work it had was for an electrician, which wasn't suitable for Malenfant. The worker identified two jobs that he thought he could do, but these weren't available. Further assessments were con- ducted and in June 2017, Ryam indicated that it had offered work to Malenfant but the worker pre- sented barriers and the "risk/re- ward factor is too great" to bring him back. The company's position was that it had tried to accommo- date Malenfant, but it had been unsuccessful. Malenfant found a part-time job as a bus driver and contacted Ryam in September 2017 about severance pay to which he felt he was entitled. The collective agree- ment contained a provision stat- ing that "an employee with three or more years of continuous ser- vice, for whom no job is available can, upon termination, elect to re- ceive a severance allowance of one and a half weeks' pay for each year of employment during his last pe- riod of continuous service (up to the date of termination)" with a maximum payout of 45 weeks. Ryam denied the request be- cause Malenfant had been off work on an active WSIB claim and had remained on the senior- ity list, so he hadn't been termi- nated. The union filed a grievance, arguing that no job was available for Malenfant when he was ready to return to work, so his employ- ment was effectively terminated. The arbitrator noted that the collective agreement language should be taken in its "plain and ordinary meaning," so the case boiled down to whether a job was available to Malenfant when he asked for his severance pay under the collective agreement. The arbitrator also noted that Ryam needed more medical in- formation in order to fully evalu- ate whether it could accommo- date Malenfant, but the company never informed him that the bar- rier to him returning was a lack of medical information and it didn't request additional information. Malenfant only knew that the jobs he suggested weren't available. "The important basic reality for this decision is that unless the employer, who controls the work- force, offers a job, it is not, in any realistic sense, available to an em- ployee," said the arbitrator. "The evidence is very persuasive that no job was ever made available or offered to Mr. Malenfant during the relevant period." The arbitrator found that there was likely confusion and miscom- munication between Malenfant, Ryam, and the WSIB, but it was clear that Malenfant didn't turn down any jobs because the com- pany didn't offer any. Since there was no job available, Malenfant was entitled to the severance al- lowance under the collective agreement. Reference: Ryam Lumber and USW, Local 1-2010. Kathleen O'Neil — arbitrator. Michelle Henry for employer. James Fyshe for union. May 21, 2020. 2020 CarswellOnt 9763

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