Canadian Labour Reporter

October 26, 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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Crowl-Black's disciplinary re- cord included an oral reminder in 2017 about the home's "no lift" policy after she and a registered practical nurse lifted a resident off the floor without using a me- chanical lift. She also was sus- pended for five days in December of the same year after she argued with a resident and slammed the door of the resident's room. On Nov. 24, 2018, the worker was on the night shift with a "float" PSW. The float PSW de- termined that a resident's incon- tinent pad needed to be changed and Crowl-Black agreed. However, the resident resisted their efforts to change her, saying "no" and pinching the float PSW. The float PSW gave the resident a stuffed rabbit to distract her, but the resident continued to re- sist. Eventually, they were able to change the incontinent pad. The next day, the resident's roommate told a PSW on the day shift that Crowl-Black had thrown the stuffed rabbit at the resident during the incident. Alexander Place management considered this an allegation of resident abuse and placed both Crowl-Black and the float PSW on paid leave pending an investi- gation. In her investigative interview, Crowl-Black denied that she had thrown the stuffed rabbit at the resident. She said they hadn't considered a "stop-and-go" ap- proach because of "time con- straints." She also later said that she had suggested that they come back later, but the float PSW needed to see other residents — though the float PSW didn't re- call that suggestion. Crowl-Black acknowledged that both of them were responsible for failing to provide proper care. Alexander Place's head office decided to terminate Crowl- Black's employment for breach- ing its policies, determining that it was a "culminating incident" following her two previous in- stances of discipline. The float PSW — who had no prior disci- pline in 10 years — was given an oral reminder for failure to rely on the "stop-and-go" approach. The union grieved the dismiss- al, arguing that termination was excessive. The arbitrator found that Crowl-Black was aware of the requirement to follow the "stop- and-go" approach and had re- ceived training on it. In addition, Crowl-Black's assertion that she had suggested leaving and com- ing back wasn't corroborated by the float PSW and Crowl-Black seemed to indicate in her inves- tigative interview that the time constraints were her own, said the arbitrator, noting that if the mat- ter was urgent and they needed to proceed, they could seek assis- tance from the nurse on duty. The arbitrator found that dis- cipline was warranted, but ter- mination was excessive. Crowl- Black acknowledged that they didn't follow proper procedure — which indicated that she appreci- ated the nature of her misconduct — but was treated more harshly than the other PSW. Despite the prior discipline, the arbitrator felt that the employment relationship was still viable and lesser disci- pline would "send a clear message to the employee as to the inappro- priateness of the conduct, while still preserving the employment relationship." Alexander Place was ordered to reinstate Crowl-Black with a 10-day suspension for her mis- conduct. Reference: Alexander Place and SEIU, Local 1 Canada. Brian Sheehan — arbitrator. Paula Rusak for employer. Robert Church for employee. Aug. 13, 2020. 2020 CarswellOnt 14342 Arbitrator deems 10-day suspension enough discipline Dismissing worker not related to ethnicity: Arbitrator in homes and businesses, profi- ciency in English or French was necessary. English was Shaji's second language but he spoke it well enough to get the job and to complete classroom training. On May 3, 2017, he began working in the field on his own under super- vision by an experienced techni- cian. The operations manager told Shaji that he was to phone him every two hours, but Shaji misunderstood and thought this applied only if he had a problem. As a result, sometimes the op- erations manager had to call him. On May 7, a field operations manager told the operations manager that Shaji's comprehen- sion of English was "not good" and he had to repeat himself when giving instructions. Shaji also incorrectly logged an in- complete job as cancelled by the customer without checking with a manager first, as per policy. The operations manager spoke with Shaji's two mentors, who both said they found it difficult to communicate with Shaji. On May 19, the operations manager visited Shaji on an as- signment and found he hadn't used the company's step-by-step flow chart to install equipment and services. As a result, Shaji missed part of the procedure and made the line he was install- ing defective. He discovered that Shaji had been using the chart on less than half of his assignments, although technicians were re- quired to use it. On May 28, Shaji spent five hours at a customer's house try- ing to repair a phone line. He called the operations manager and said the customer had called him racial names, so the man- ager told him to leave. The op- erations manager was also con- cerned that Shaji hadn't called for assistance earlier. The next morning, when Shaji and other technicians were given their vehicle keys, Shaji complained that he'd only been given half of the keys. The operations manager felt Shaji was being aggressive, so he ac- companied him to his vehicle and found the missing half of the keys in the front door lock. Shaji denied that it had been there be- fore, raising concerns about his attitude and failure to take re- sponsibility for it. The operations manager de- cided that Shaji's communica- tion and performance problems made him unfit for employment with Bell. On May 31, Bell ter- minated Shaji's employment for "failing to meet the requirements of the job." The union argued that the primary reason for the termination was Shaji's lack of English language skills, making it discriminatory. It also argued the union wasn't properly informed of the reasons for termination. The arbitrator found that, over time, the operations manager grew frustrated with Shaji's per- formance and his lack of com- prehension. Evidence indicated that Bell hired many employees who had English as a second lan- guage, which indicated "a broad and tolerant attitude towards immigrants." The issue with Shaji wasn't his national or eth- nic origin, but rather his inability to communicate, the arbitrator said. The arbitrator also found that Shaji failed to follow procedures, had deficiencies in his work, and showed a poor attitude. Bell rea- sonably concluded that he wasn't a good fit, said the arbitrator in finding that Shaji was terminated for operational reasons. The arbitrator noted that Bell wasn't obligated to notify Shaji that his employment was in jeop- ardy as he was already on proba- tion. The company did breach its obligation to provide a reason for termination to the union, but this wasn't serious enough to in- validate the termination, said the arbitrator. Reference: Bell Technical Solutions and Unifor, Local 1996-O. Christopher Albertyn — arbitrator. Kathryn Meehan for employer. Aleisha Stevens for employee. Oct. 5, 2020. 2020 CarswellNat 4126

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