Canadian Labour Reporter

May 24, 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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complaints against coworkers. The worker went on a medical leave in late 2016 and filed a workers' compensation claim for work-related mental health issues, but the claim was denied. However, she remained off work for two years. The worker returned to work in 2018 on modified duties. The worker returned on Feb. 13 and the division manager scheduled a meeting to welcome her back but she said she didn't want to go to the administration building. The manager and the superintendent went to greet the worker, but she became emotional and HR scheduled a meeting with the worker and support people from her department. There was a disagreement about the worker's restrictions and the worker was confrontational and angry, saying she didn't feel safe there. On Feb. 22, the worker claimed that the superintendent had trapped her in an office and berated her. The municipality retained an outside investigator to look into the complaint, who found the allega- tion unsubstantiated. One month later, the worker emailed the division manager about a safety issue regarding a coworker sitting in his car who she worried would follow her out of the plant. The manager said he didn't regard it as a safety issue. In June, management expressed concerns about her "feelings of mistrust" that created stress and difficulty for "those charged with your supervision." They noted that they saw the work environment as "objectively safe" and gave her a letter stating they she was expected to work with all of her coworkers and accept workplace directions from those in authority. In July, the worker filed a report alleging that she was inap- propriately touched by another employee. The superintendent looked into it and determined that the coworker had lightly tapped her on the shoulder in a friendly way and no action was required. The worker demanded an investigation and yelled at the superintendent, saying that the joint health and safety committee (JHSC) did nothing and she wasn't going to return to work until her complaint was investigated. She went on leave to Jan. 11, 2019. Shortly after the worker's return, the manager and an HR advisor informed her that her "disruptive behaviour" was causing "significant adverse impacts on your coworkers and workplace productivity." They warned her that if she was unable to modify her behaviour, she would be terminated. On March 6, 2019, manage- ment held a town hall meeting with all staff. The worker stood up and asked the superintendent to step down as co-chair of the JHSC for failing to address safety issues and demanded a review of the respectful workplace policy. When asked for an example, she raised past complaints that had been found to have no merit. On April 2, 2019, the worker's employment was terminated for being disruptive, creating a negative work environment and contravening the expectations that had been set out for her. The arbitrator found that the worker had been directed not to continue bringing up matters that had been investigated, but she didn't comply. In addition, it wasn't appropriate for her to ask a management representative to step down from the JHSC, as the committee had both employer and union representatives, including a union-appointed co-chair. Her behaviour was unreasonable and intended to humiliate the super- intendent and undermine his authority, said the arbitrator. The arbitrator noted that the worker may have honestly believed the workplace was unsafe for her. However, that didn't mean she shouldn't follow directions and she apparently believed that "her views permit her to do and say whatever she wants without consequence despite management's warnings to the contrary." The worker's failure to follow directions and her personal attack on the superinten- dent's credibility constituted insub- ordination, the arbitrator said. The arbitrator found that the worker demonstrated a pattern of that made her unmanageable. She was warned that her employ- ment was in jeopardy, but the behaviour continued, making the employment relationship no longer viable, said the arbitrator in upholding the termination. Reference: Metro Vancouver Regional District and GVRDEU. Elaine Doyle — arbitrator. Greg Heywood for employer. David Tarasoff for union. Jan. 20, 2021. 147 C.L.A.S. 114 handcuffed to a chair while two male officers drew on her face with a Sharpie marker. Michel reportedly did nothing to help the female officer, laughed while telling the other officers about it, and said, "those boys." Michel told an investigation committee that at the time of the incident, she was a newly- appointed correctional manager and was also new to EI. She said the officers in question stopped their activity after she spoke to them, she felt it was horseplay, and she knew that the female officer was "one of the boys" in the unit, so she didn't follow up with her or report it. She acknowledged that in hindsight, she should have handled it differently and she recognized that there was a safety risk to the female officer if she had received a call to respond. Michel also said that she had heard rumours about the group who worked in that unit — they were known as "the group with the power" at EI and they didn't listen to managers — and she had been told by others to "keep her head down and mind her own business." The investigation committee determined that Michel failed to report the incident, counsel the male officers, or investigate further. This was a violation of her correctional manager duties and deserving of discipline. CSC initially suspended Michel on Nov. 3 while it continued to investigate, then terminated her employment on Jan. 5, 2018, for breaching CSC policy requiring reporting of an incident and the bond of trust. Michel grieved her dismissal, arguing that CSC didn't consider the mitigating factors. The arbitrator found that regardless of the circumstances, Michel had an obligation to live up to her responsibilities. Horseplay wasn't an acceptable workplace activity as it raised workplace safety issues and could lead to assault and harassment, said the arbitrator, who also added that it violated CSC's standards of professional conduct for correctional officers. "I believe that [Michel] cannot be excused from the proper exercise of her duties or at least from attempting to properly execute them," said the arbitrator. "Furthermore, her failure to report the unacceptable behaviour and activities allowed them to continue for two years, perpetuated the poisoned environment for which EI was notorious at that time, and exacerbated her failure." The arbitrator also found that an objective member of the public would take issue with a manager in a federal correctional institution allowing male officers to handcuff female officers to chairs and draw on them with markers. CSC was "justified in doubting her integrity and judgment," the arbitrator said. The arbitrator determined that CSC could no longer trust Michel to properly conduct herself in the workplace and follow its policies, and Michel "lacks the insight to required not to repeat the behaviour for which she was terminated." The termination was upheld. Reference: Michel v. Deputy Head (Correctional Service of Canada). Margaret Shannon — arbitrator. Pierre-Marc Champagne for employer. Daniel Sorensen, Brian Grootendorst for employee. Dec. 15, 2020. 2020 FPSLREB 115 Worker breached trust, didn't live up to responsibilities Employee warned about ongoing 'disruptive behaviour'

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