Canadian Labour Reporter

April 26, 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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and knee pain, leading to periodic absences from work. He started reporting to a new supervisor, who coached him on the call-in procedures for reporting absenc- es and lateness — he had to call at least one hour before the start of his shift to report an absence. De Pedro failed to follow prop- er call-in procedures for two ab- sences in late September, so his supervisor wrote up a coaching letter outlining the procedure, the number of the sick line and the supervisor's contact infor- mation. De Pedro had three more ab- sences over the next two weeks where he didn't follow the call-in procedure, so management is- sued him a written reprimand warning that if he did it again, "there may be additional disci- pline, up to and including termi- nation." De Pedro was off sick from Oct. 22 to Nov. 1, but he often failed to report his absences on a timely basis. De Pedro explained that he had difficulty waking up in the morning due to his pain medica- tion. He was reminded to call or text at least one hour prior to his shift and management would support him if he requested ac- commodation. Management also suggested an informal accommodation where De Pedro could call or text his supervisor the night before if he took medication that might make him late. However, they also suspended him for three days for his failure to follow pro- cedure. De Pedro took a medical leave in December, returning with modified duties at the end of January 2019. However, he was absent in the first week after his return. He was given informal coaching, but later he left work at noon for a doctor's appointment without telling his supervisor. He was late on another day, failed to call in an absence in a timely man- ner, and took a two-day stress leave without medical documen- tation. Management suspended De Pedro for seven days and warned him that he was heading towards termination if he didn't immedi- ately correct his behaviour. They reiterated the arrangement allow- ing him to call or text the night before. De Pedro followed the call-in procedure for several absences in March and April but on May 8, he called his supervisor just before the start of his shift to say his car tire had "exploded" and he would be one hour late. However, he was nearly two hours late. De Pedro explained that he had returned home to clean up and change but had a fight with his wife, which made him later than expected. Management felt that further progressive discipline wouldn't work and terminated his employment. The union filed a grievance, arguing that the ter- mination violated the collective agreement's requirement for due process and progressive disci- pline. The arbitrator found that man- agement had made its expecta- tions clear through coaching, warnings and suspensions and De Pedro should have known that a failure to change could result in further discipline including ter- mination. The arbitrator also found that although De Pedro had medical issues, he didn't request accom- modation and he didn't cooperate with the informal accommoda- tion. In addition, the culminating incident had nothing to do with his medical issues — he appreci- ated that his employment was in jeopardy when he called after the flat tire, but he didn't "demon- strate the sense of urgency one would expect," said the arbitrator in dismissing the grievance. Reference: CUPE, Local 1975 and University of Saskatchewan. Leslie Belloc-Pinder — arbitrator. Kit McGuinness, Stephanie Nemeth for employer. Jake Zuk for employee. March 16, 2021. 2021 CarswellSask 177 as the assistant manager arrived to join the fray. LeBlanc approached as her co- workers tried to restrain the cus- tomer. She picked up a hat that the customer had been wearing and had fallen to the floor dur- ing the altercation. The customer reached out to grab his hat but a tug-of-war ensued, the strug- gle resumed and LeBlanc was knocked to the ground. The customer was brought un- der control and told to leave the store. The customer left but then smashed one of the glass front doors. LeBlanc followed him out of the store and the customer stayed outside for some time, yell- ing profanities and threats back at the store employees. The LCBO investigated the altercation, took a statement from LeBlanc, and reviewed sur- veillance video. It determined that LeBlanc used physical force against the customer, didn't keep a safe distance from the alter- cation, physically engaged the customer in a way that led to her falling, and failed to remain in- side the store after the incident, contrary to the LCBO's policy for violent incidents and theft by cus- tomers. On Sept. 4, the LCBO suspend- ed LeBlanc for 10 days without pay. The suspension letter stated that LeBlanc's statement about the incident was "not entirely ac- curate,": she didn't keep a safe dis- tance from the violent customer and she directly contravened LCBO policies and procedures. The other two employees in- volved in the altercation received longer suspensions. LeBlanc grieved the suspen- sion as excessive, denying that she used physical force against the customer and saying that she only went outside to deal with the broken glass, which was a safety hazard. The arbitrator found that the LCBO's policy directing em- ployees not to become physically involved with customers or pur- sue those suspected of commit- ting theft was reasonable, but it should be enforced in a reason- ably way. During the altercation, LeBlanc was mostly a bystander and wasn't physically involved with the efforts to restrain or sub- due the customer, the arbitrator said. However, the arbitrator noted that LeBlanc had some culpa- bility, as she should have let go of the customer's hat when he reached for it. Her failure to do so led to her falling to the ground. The arbitrator also found that LeBlanc violated the theft policy by following the customer out of the store, re- gardless of the reason, so some discipline was warranted. "Even if [LeBlanc's] stated ra- tionale for exiting the store at that juncture is accepted and happened with the best of inten- tions, she violated the policy and potentially left herself in a poten- tially vulnerable scenario as the customer had remained outside the store, still acting in an agi- tated and angry manner towards the LCBO personnel in the store," said the arbitrator. The arbitrator determined that LeBlanc's 10-day suspension was excessive. The LCBO was or- dered to reduce the suspension to one day and compensate LeBlanc for the lost nine days of pay, if nec- essary. Reference: OPSEU and Ontario (Liquor Control Board of Ontario). Brian Sheehan — arbitrator. March 26, 2021. 2021 CarswellOnt 4156 Employee gets in tug-of-war with violent customer Worker doesn't cooperate with accommodation

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