Canadian Labour Reporter

June 21, 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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through respiratory droplets in a cough or sneeze, close personal contact and touching surfaces or a person's face before washing their hands. It followed this up with a plan that included "respi- ratory etiquette" — coughing or sneezing away from others and into a disposable tissue or sleeve followed by washing hands. Linde developed COVID-19 symptoms in mid-March and self-isolated, remaining off work until April 8. On March 30, he contacted the B.C. Centre for Disease Control and was told he should wait for seven days before returning to work and he didn't need a test if he was symptom- free. On April 14, Linde waved down a delivery truck driver at the school where he was working and opened the truck's passenger door. He leaned into the truck's cab and coughed three times without any attempt to cover his mouth. When the driver asked him to move back, Linde said that he been off for two weeks with CO- VID-19 symptoms. As the driver unloaded his delivery, Linde ap- proached him again and said he had had symptoms but he wasn't contagious anymore, and if the driver was infected it would be like a "science experiment" and "biowarfare." The driver reported the inci- dent, saying that he was shaken up, cleaned his van with bleach and went home to shower after- wards. Linde explained that the driver had stopped to chat with him and he "pretended to cough a couple of times, only making the faintest noise." He said it was intended as a practical joke and he commented about a sci- ence experiment and biowar- fare because he was angry over the driver asking why he was at work. Linde accepted responsibility for his "bad attempt at a joke" and said he would be more profes- sional in the future. After the in- terview, Linde texted an apology to the driver. On May 13, the district com- pleted its investigation and sus- pended Linde for 10 days for violating safety measures with his actions that were "egregious, unnecessary, and showed a com- plete lack in judgement." The union grieved, claiming that the suspension was excessive. The arbitrator noted that the incident occurred early on in the pandemic when there was "considerable uncertainty and a heightened degree of concern among district employees and the public at large." The district took the pandemic seriously and took significant steps to advise its employees of how to stay safe at work. Linde's misconduct signifi- cantly affected the driver and was contrary to the district's attempts to keep employees safe, said the arbitrator. The arbitrator found that Linde's actions were deliberate and although they didn't involve a lot of planning, the incident was premeditated when Linde decid- ed to play a practical joke. In addi- tion, there was a "heightened risk of harm as [Linde] had been sick with COVID-19 symptoms and hadn't been tested before return- ing to work. "[Linde's] conduct was extraor- dinarily reckless — that is, he took a risk and did not care whether it would materialize or not," the ar- bitrator said. The arbitrator noted that Linde had a record free of dis- cipline, had 16 years of service, and acknowledged his miscon- duct. However, he also attempt- ed to minimize his misconduct in the interview and his apology wasn't spontaneous but came later when he was under inves- tigation. This wasn't enough to mitigate his misconduct, said the arbitra- tor in determining that the sus- pension was appropriate. Reference: Vancouver School District No. 39 and CUPE, Local 407. Paul Love — arbitrator. Peter Csiszar for employer. Kirsten Daub for employee. May 10, 2021. 2021 CarswellBC 1475 full duties with no restrictions." However, the company wanted more information indicating that he was fit to return. The plant's general manager told Watt they had concerns about safety since he had taken multiple medical leaves on short notice with only brief notes saying he was medically fit to return each time. Watt replied that he issues were related to mental health — he had anxiety. The company asked Watt to sign a medical release, but Watt's doctor didn't think it was a good idea. He was told not to report to work at the end of his medical leave, as there were safety con- cerns without information indi- cating a change in Watt's medical issues. Watt maintained that seeing a company doctor wasn't an op- tion and the general manager suggested an independent medi- cal examination (IME). Watt re- sisted. Watt signed a release but wrote that it was only valid until Aug. 31. He received notification of an appointment for a psychological assessment on Aug. 26. Watt said an IME was unnecessary because he had already seen his doctor and was ready to return to work. The union filed a grievance say- ing that Watt wasn't being allowed to return to work. The company responded that Watt hadn't com- plied with medical clearance re- quirements. The arbitrator found that "the plywood plant is a safety-sensitive environment and accidents can cause grievous injury to employ- ees" and Watt's job had "signifi- cant responsibility to maintain safety in the workplace." The arbitrator noted that West Fraser Mills didn't raise any con- cerns about Watt's ability to work safely when he returned from his previous medical leaves and Watt hadn't committed any safety vio- lations. Although Watt had been emotionally volatile in the work- place, this wasn't a significant be- havioural change as he had a his- tory of being confrontational, the arbitrator said. However, the arbitrator found that an employer is entitled to evidence that the employee is medically fit to return to work af- ter an illness or injury. Watt went on medical leave three times within a 15-month period and the brief doctor's notes didn't give the company much to go on, the arbitrator said. "The plywood plant is a safety- sensitive work environment and [Watt] has responsibilities to en- sure the workplace is safe for him- self and other employees," said the arbitrator. "In these circum- stances, I find that it is reasonable for the employer to require more than just the one-line note simply stating [Watt] is medically stable as medical confirmation of his fit- ness to work safely." The arbitrator determined that West Fraser Mills had reasonable grounds to hold Watt out of ser- vice until it received additional medical information to satisfy its concerns, but it allowed the griev- ance in part because an IME was too intrusive. The company was ordered to seek further medi- cal information by less-intrusive means. Reference: West Fraser Mills and USW, Local 1-2017. Allison Matacheskie — arbitrator. Donald Jordan for employer. Sarbjit Deepak for employee. April 27, 2021. 2021 CarswellBC 1462 Clearance document too brief for plywood plant operator Poor joke attempt breached school safety procedures < Coughs pg. 1

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