Canadian Labour Reporter

February 15, 2021

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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LABOUR FORCE NUMBERS workplace," insubordination, at- tendance and "personal work is- sues" — including three instances of coaching, one verbal warning, four written warnings and two one-day unpaid suspensions. Reoch was also suspended for three days for safety issues, which was a particular concern for Pow- er Precast since its workplace was safety sensitive. Reoch co-chaired the com- pany's joint health and safety committee and had a copy of the Power Precast health and safety handbook, which required work- ers to "immediately report unsafe acts and conditions to supervi- sors." On May 29, 2020, Reoch was operating a "bucket truck" — a forklift fitted with a bucket to carry concrete. At the end of his shift, Reoch turned the bucket truck over to a coworker. He left without speaking to the coworker. The coworker inspected the truck and immediately noticed there was something wrong with the brakes. He drove it off to the side and determined that it wasn't safe to use. Not finding anything marked in the logbook, he called the organization that serviced the company's forklifts to check it out. The maintenance company found the forklift had "zero brakes" with cement accumulat- ed on the brake adjuster. It recom- mended driving the unit to get the dust out but it remained "tagged out" of service until new parts could be installed. Afterward, the coworker asked Reoch about how the brakes on the truck had been working the previous day, and Reoch replied that they weren't working well. The yard supervisor then spoke to Reoch about it, and Reoch said that the brakes were "not the greatest, then all of a sudden on that day, none." He explained that he didn't enter it into the logbook because he "got used to it" by us- ing reverse to slow or stop the forklift — which the supervisor considered bad practice — and he was "not sure how bad they really were." The company determined that, since Reoch had several previous instances of discipline including a safety-related suspension, his employment should be terminat- ed effective June 8. The union grieved the dismiss- al, arguing that termination was excessive and there was a chance of rehabilitation. Reoch acknowl- edged that it was "foolhardy" to operate the forklift and not tell his coworker, as this could have re- sulted in injury or death to some- one. He explained that he had been preoccupied with his wife's deteriorating medical condition, but he had since received coun- selling and his wife's condition had improved. He apologized at the hearing. The arbitrator noted that there was no doubt Reoch was "guilty of deliberate and reckless behaviour." In addition, he was a short-term employee with a "less than stellar disciplinary record" as well as co-chair of the joint health and safety committee, which brought a higher standard of safety conduct, said the arbi- trator. The arbitrator found that the apology and acknowledgment of misconduct at the hearing came too late and only when his job was in jeopardy, when he could have apologized at the investigation in- terview. The arbitrator also didn't accept Reoch's explanation that his wife's condition affected his ability to report a safety issue and caused him to operate unsafe ma- chinery for multiple hours. The arbitrator found that Reoch's "act of commission and one of omission" could have caused "catastrophic damage to life or limb." Given his short service and disciplinary record, there was little chance of rehabili- tation, the arbitrator said in up- holding the termination. Reference: Power Precast Solutions and USW, Local 8327. Sydney Baxter — arbitrator. Dan Palayew for employer. David Lipton for employee. Jan. 4, 2021. 2021 CarswellOnt 3. stating that staff that participated in the testing would be paid for one hour of work with free park- ing at the hospital. However, several CCRH em- ployees said they weren't willing to participate in the biweekly sur- veillance testing. One particular registered nurse at the home said the initial nasal swab test caused her nose to bleed for multiple days and she felt biweekly testing by the same method was inva- sive. She also argued that the test- ing didn't accomplish its stated purpose, as a test only indicated whether someone had COV- ID-19 at that particular time, so someone could get it during the two weeks before the next round of testing. CCRH said anyone who re- fused would have to wear full personal protective equipment (PPE) for their entire shifts at the retirement home or be held out of service. Employees who specifi- cally challenged the nasal swab testing method were assessed on a case-by-case basis and those who couldn't tolerate the nasal swab were allowed to do a throat swab. However, the union filed a grievance, claiming that the bi- weekly surveillance testing was unreasonable for employees who were asymptomatic. The arbitrator noted that the policy was clear and unequivocal, was brought to the attention of employees, and the consequence for not participating was disci- plinary. These were all criteria established in arbitral jurispru- dence and supported by the Su- preme Court of Canada. The arbitrator disagreed with the union's comparison to cases where drug and alcohol testing was deemed to be unreason- able based on the weighing of the policy's goal against the breach of employee privacy. It noted that CCRH's goal of controlling CO- VID-19 infections — which are particularly dangerous to the el- derly, the demographic that made up CCRH's residents — was not the same as monitoring the work- place for intoxicants, which are not infectious. "COVID testing reveals only one piece of information: the em- ployee's COVID status," said the arbitrator. "Being intoxicated is culpable conduct; testing positive [for COVID-19] is not." The arbitrator found that, given the seriousness of the ef- fects of an outbreak at the home, it was reasonable to have employ- ees take a nasal swab test once every 14 days to help prevent the spread of COVID-19 in the home. Waiting to act until an infection or outbreak happened was not a reasonable option, said the ar- bitrator, adding that it had been established by scientists that test- ing symptomatic individuals only would miss much of the spread in the community. "A negative test may be of lim- ited value to the individual em- ployee tested but it is of high value to the home; and a positive test is of immense value to both the employee and the home," said the arbitrator. "A positive test leads to identification, isolation, contact tracing and the whole panoply of tools used in combatting the spread of the virus." The grievance was dismissed. Reference: Caressant Care Nursing and Retirement Homes and Christian Labour Association of Canada. Dana Randall — arbitrator. Thomas Stefanik for employer. Peter Vlaar for employee. Dec. 9, 2020. 2020 CanLII 100531 Potential outbreak risky for residents: Arbitrator Operator knowingly used forklift with bad brakes

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