Canadian Labour Reporter

June 14, 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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removed his drink from the em- ployee refrigerator. As a result, the worker took a medical leave of ab- sence on July 2. The worker's doctor cleared him to return to work on July 24 on a trial basis, with the doctor reassessing the worker after four weeks. The worker reported for work on July 25 and advised the TDC superintendent about his ongoing health issues. He requested that he be removed from "an inmate-facing role," but the superintendent de- clined to do so. On the worker's first day, he started feeling "frustrated and angry with the manner in which daily operations were being con- ducted and how deficiencies in such had become acceptable." He was particularly troubled by staff- ing shortages that he felt left the TDC operating in dangerous cir- cumstances. Two days later, on July 27, the worker was assigned to the "con- trol room" with two colleagues. At the beginning of his shift, he dumped the office garbage bin on the floor and punched a com- puter monitor. He then burst into tears and remained in an emo- tionally fragile state for the rest of his shift. The computer monitor cost $300 to replace. The ministry investigated the incident and found that the worker had committed two workplace infractions — dam- aging the employer's property and violating two of its policies, the Code of Conduct and Pro- fessionalism and the Respectful Workplace Policy. The worker admitted to the property dam- age and explained that he was under "a significant amount of stress." He voiced concerns about staffing levels and other man- agement decisions that he felt weren't being made in the best interest of "front-line manage- ment." However, he got upset about the allegation of breaching workplace policies and he had a terse exchange with the superin- tendent. On Aug. 23, the worker's doc- tor advised that the worker was unable to perform "regular duties due to a medical illness" for nine days. The TDC granted the work- er's request for accommodation by removing him from an inmate- facing role on Oct. 4. On Oct. 15, the worker was suspended for three days for the July incident. The suspension letter noted that he had accepted responsibility for the property damage but his response to the allegations was "aggressive in na- ture." The worker took a six-week medical leave in November and December, and on March 13, 2019, he was diagnosed with post-traumatic stress disorder (PTSD) related to his work expe- rience at the TDC. The union grieved the suspen- sion, arguing that the ministry failed to take into consideration the worker's medical condition when it imposed discipline. The arbitrator found that the evidence supported the fact that the worker suffered from PTSD but the employer only had "lim- ited clinical knowledge" of his health status — the information was "limited to brief notes" from the worker's doctor and brief comments by the worker at the investigation meeting. In addi- tion, there was no medical in- formation establishing a causal link between the worker's mis- conduct and his PTSD diagnosis several months later, said the ar- bitrator. The arbitrator also found that since the worker acknowledged that he had damaged employer property, he should have appre- ciated that the conduct violated workplace policies rather than become upset. The arbitrator considered that the worker was in a position of authority and his actions were in front of coworkers, so it was seri- ous enough that a three-day sus- pension was reasonable. Reference: Skoretz and Ontario (Ministry of the Solicitor General). Brendan Morgan — arbitrator. Andrew Lynes for employer. Christopher Dilts for employee. May 5, 2021. 2021 CarswellOnt 6721 Cook was surprised by the call and he refused to answer the screening questions. When she tried to explain why she was ask- ing the questions, Cook kept in- terrupting her and telling her he had never had to give a reason for calling in sick before. He called a couple of hours later to say he had heard back from tele-care services and a nurse told him that he didn't need to get tested but he should stay home until he felt better. On April 3, the public works department called a meeting to discuss COVID-19 directives. Cook, who was a shop steward, asked some questions and wasn't satisfied. He said loudly, "This is bulls---!" and walked out. On April 21, the HR manager and the department manager met with Cook to discuss the March 30 and April 3 incidents. The HR manager again tried to explain the screening questions on the phone call, but Cook kept interrupting her and said he had felt interro- gated. Cook also said that he had made the comment at the meeting be- cause employees weren't getting satisfactory answers. He also said he had left because it was near the end of his shift and he had to pick up his children. He later admitted that he shouldn't have left. When he was told that his be- haviour hadn't changed since a one-day suspension in May 2019 and they were considering the next step in the collective agree- ment's progressive discipline pro- cess, Cook looked at his manager, leaned forward, and said that he hoped he could meet him "outside of work and have a man-to-man conversation." He was asked if that was a threat, to which he replied no and repeated the statement. Cook received a three-day suspension for insubordination. The union grieved the suspen- sion, arguing that Cook had a reason to be suspicious in the phone call, he was acting as a shop steward during the April 3 meeting, and he didn't threaten the manager. The arbitrator found that it was reasonable for the town to in- quire if Cook had any COVID-19 symptoms. However, when Cook said he had called tele-services and then called back to clarify his symptoms, it should have been sufficient. Although Cook could have responded better, the inci- dent wasn't worthy of discipline, the arbitrator said. The arbitrator also found that there was no evidence that Cook was acting as a shop steward when he swore and left the April 3 meet- ing. His actions were disrespectful and demeaned the town's author- ity in front of coworkers, said the arbitrator. Finally, the arbitrator found that Cook's conduct in the dis- ciplinary meeting was confron- tational and disrespectful. In addition, it was reasonable to interpret his body language and the "man-to-man conversation" comment as a threat, said the ar- bitrator. Since Cook had a previous sus- pension on his record, the arbitra- tor determined that the three-day suspension was appropriate as it followed the collective agree- ment's progressive discipline pro- cedure. Reference: CUPE, Local 3326 and Quispamsis (Town). Michel Doucet — arbitrator. George Raine for employer. Michael Davidson for employee. May 14, 2021. 2021 CarswellNB 259 Shop steward made veiled threat during meeting No link between tantrum, medical finding: Arbitrator < PTSD pg. 1 < COVID-19 pg. 1 June 14, 2021 8 Canadian HR Reporter, a Key Media Canada (HR) Ltd. business 2021

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