Canadian Labour Reporter

July 12, 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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"stress affecting his mental health and capacity to deal with his re- sponsibilities at work." The doc- tor's note stated that a "change of current work environment/job will definitely help his current state of health." On June 7, the worker provid- ed another doctor's note stating that he was "unable to work for medical reasons." The ministry contacted the worker's doctor in- dicating that it was committed to accommodating the worker but it needed information on his fitness for work and restrictions. The doctor replied that the worker's restrictions were "extreme worry- ing, unable to focus, concentrate" and recommended a different work environment. The progno- sis for a return to work was "good, provided his work environment changes," said the doctor. Two weeks later, the ministry sought clarification on the work- er's fitness for work, noting that the information provided indicat- ed symptoms but not restrictions. The doctor again replied with "ex- treme worrying, paranoia, people are out to get him at the previous office" and said the worker could immediately return to his current position "but at a new physical of- fice." The ministry sought further information on July 20, and the worker's doctor reported that the worker's condition was "likely long-term considering ongoing issues at this place with staff " but they were "likely temporary pro- vided change in work environ- ment happens soon." On Aug. 2, an HR consultant wrote a summary of the medi- cal reports and indicated that the worker "has a medical condition preventing him from working at the CCC." The worker went on a previ- ously scheduled vacation from late September until late October. When he returned, he submitted a medical note dated Nov. 5 that recommended a trial in a differ- ent workplace. In April 2019, the worker was offered a 0.4 position in a dif- ferent court at the CCC but the worker provided a note dated April 23 stating that he needed accommodation in a different building. The ministry's HR depart- ment started looking outside the CCC but found it difficult to find a 0.4 position. Eventually, a full- time job in a different ministry elsewhere was found, which the worker started on June 25. The union filed a grievance ar- guing that the worker should have been accommodated much ear- lier than June 2019. The arbitrator found that the Aug. 2, 2018, summary by the HR consultant indicated that the ministry was aware that the work- er couldn't return to the CCC and the medical reports were clear on that point. Although the ministry may have had concerns that the worker's issues weren't "strictly medical," it should have started the accommodation process then by searching for a position outside of the CCC. However, it didn't do so until April 2019 after the worker declined a position in the CCC. The arbitrator noted that once the accommodation process be- gan, it took nine weeks due to the scarcity of positions and the need for approval to look outside the ministry. Extrapolating that from Aug. 2, 2018, and account- ing for the worker's vacation, the accommodation process could have begun on Nov. 5, 2018, said the arbitrator. The ministry was ordered to pay damages for lost earnings from Nov. 5, 2018, to the start of the new job on June 25, 2019, plus reimbursement for the cost of four medical reports issued at the request of the ministry. Reference: Alberta (Justice and Solicitor General) and AUPE. Allen Ponak — arbitrator. Shelina Mohamed-Rawji, Peggy Kemp for employer. Ralf Kuntzemann, Sophie Parsons for employee. Feb. 1, 2021. 2021 CarswellAlta 275 photo of the worker in his car in the parking lot was attached. Management met with the worker and told him about the accusations. He immediately ad- mitted that he had been parking his car in the lot since he started working as a valet two years pre- viously but he said senior valets had been doing the same thing. The hotel investigated fur- ther and found that nine valets had been using the access cards to park their cars in the guest lot. Although access cards were sup- posed to be turned in, it was com- mon practice for valets to keep them, which led to cards going missing. In January, valets had been told to turn in any access cards, but the worker had kept his and continued to use it. The hotel terminated the worker's employment for breach- ing the trust it needed to employ him as a valet. The union grieved the termination. The worker denied knowing about the procedures prohibiting personal vehicles in the lot and the union said they weren't clearly communicated. The worker said he was never told he could or couldn't do it, but he "followed the lead of the senior valets." In addition, he was surprised by the termination because he thought it would be treated differently because he admitted to parking in the guest lot and named others who did it. The arbitrator noted that the fact that the worker cooperated with the investigation worked in his favour, but it was difficult to believe how he could "sustain a belief that valets were authorized to park for free." Since there were complaints to the ethics line, at least some valets were aware that it wasn't allowed, the arbitrator said. The arbitrator also found that the fact that the worker didn't turn in his card when instructed to in January 2016 and continued to use it, was confirmation that his conduct wasn't an "honest mistake or even bad judgment." "The [worker] made a con- scious choice to disregard two specific directions of manage- ment in order to continue ben- efitting from the proxy card that gave him access to the free and very convenient parking," said the arbitrator, adding that the hotel potentially lost $53 in revenue for each overnight period the worker parked his car for free. The arbitrator also found that the worker never admitted that he did anything wrong and his position was that he shouldn't be faulted for doing what others were doing. The worker's "lack of acknowledgment of misconduct remains problematic and signifi- cant," the arbitrator said. The arbitrator determined that the worker knew what he was do- ing and did it for an extended pe- riod of time. This made it difficult for the hotel to trust him going forward, said the arbitrator in up- holding the termination. Reference: Fairmont Royal York Hotel and Unite-Here, Local 75. Paula Knopf — arbitrator. Trevor Lawson for employer. Ryan White for employee. March 3, 2021. 2021 CarswellOnt 3035 Common practice for cards to be kept by staff members Acceptable new job not found until more than 1 year later < Delay pg. 1

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