Canadian Labour Reporter

July 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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Mike Anderson was a process mentor for Ridge Meadows since 1999. He was the second-most senior employee. He had a leader- ship role and he was qualified to operate all equipment and park trucks. On Nov. 18, 2020, Ridge Mead- ows experienced a "double day" — a day with increased volume because the previous week had a holiday. On double days, it took extra time to finish collection, unloading, and truck parking, so some employees had to work overtime. The collections super- visor wrote on a whiteboard that morning that "only staff involved in peeling [unloading] and park- ing would have to stay and that process workers starting at 9 a.m. must stay." Anderson suffered from ongo- ing pain that required medication dispensed in limited amounts. On Nov. 18, he had to pick up a pre- scription refill at his pharmacy. He told the collections supervisor at the start of his 7:30 a.m. to 4 p.m. shift that he couldn't stay to the end of the process because he had to go to the pharmacy before it closed. Anderson had not worked overtime on a double day since February 2019. The depot manager arrived at 9 a.m. and changed the white- board message to say that all pro- cess workers must stay until all the trucks were done, as dictated by the operations manager. An- derson told the depot manager a short time later that he couldn't stay late because he had to pick up his prescription. The operations manager ar- rived a short time later and reiter- ated that all depot workers had to stay and work overtime, as it was easier than going by seniority. An- derson called the pharmacy and found out it closed at 7 p.m., so he said he could work some over- time but had to leave in time to get there. The depot manager said "Do what you have to do." Anderson completed his shift and worked for more than an hour afterwards. Around 6 p.m., he told the depot manager that he had to leave. The manager said he would be leaving without authority, so Anderson said to write him up and left. They finished parking the trucks about an hour later. Two days later, Ridge Mead- ows issued a final written warn- ing to Anderson for leaving work without authority. The normal discipline for such misconduct was a three-day suspension but the company opted to give him the warning as Anderson had no prior discipline. The union grieved the warning. The arbitrator found that the operations manager issued a di- rective that workers couldn't ex- ercise seniority rights to refuse overtime. Although Anderson had spoken to the collections manager, when the directive was issued his choices were to leave early and face any consequences or seek an accommodation after he found out when the pharmacy closed, said the arbitrator. However, the arbitrator also found that there was no evidence of an operational need for Ander- son to work overtime or that his departure couldn't be accommo- dated. The arbitrator determined that Anderson believed he had per- mission to leave after working some overtime and he stayed as long as he could. He couldn't be disciplined for leaving without au- thority during overtime when he was there because the employer didn't allow him the right to re- fuse overtime, said the arbitrator. Ridge Meadows was ordered to expunge the warning from Ander- son's record. Reference: ILWU, Local 522 and Ridge Meadows Recycling Society. James Dorsey — arbitrator. Leanne Koehn for employer. Rebecca Kantwerg for employee. June 9, 2021. 2021 CarswellBC 1879 complaints from staff that Ram and another employee were disap- pearing for long periods of time, leaving them understaffed with patients that had the potential to cause trouble and require stabi- lization. The complaints started in January and continued into March. The manager obtained Ram's access records and found that on two of her shifts, Feb. 14 and March 7, she had been absent for periods of time that exceeded her break entitlement. The manager investigated and interviewed Ram as part of the investigation. How- ever, at the time of the investiga- tion, Ram was off sick with CO- VID-19 and still had symptoms when the interview was conduct- ed by telephone. Ram wasn't told about the investigation before the interview, nor was she given any documentation about her sched- ule to help her recall the specific shifts in question. The worker mentioned during the interview that she was expe- riencing COVID-19 symptoms, but she didn't say she was unfit to participate. A union shop steward was also present and didn't object. However, the manager didn't feel Ram was forthcoming during the interview and felt she was be- ing dishonest about her behaviour — she answered some questions directly and admitted that there may have been other instances when she engaged in time theft, but she was also evasive with other questions. The manager de- termined that Ram had taken un- authorized absences totalling sev- eral hours, which also put patient safety at risk. The health authority suspend- ed Ram for two days and restrict- ed her from picking up additional shifts on her days off until she returned to her next set of sched- uled shifts. The union grieved the suspen- sion as excessive. It agreed that Ram's misconduct deserved dis- cipline but argued that the man- ager's characterization of her be- ing dishonest in the investigation interview — one of the factors that contributed to the decision to is- sue the suspension — was unfair, given that Ram was sick during the interview, had no notice of the allegations, and wasn't given time to review any relevant documents ahead of time. The arbitrator agreed that some aspects of the interview were problematic — interview- ing Ram when she was still sick and not giving her advance notice. However, there was no doubt that the worker's conduct deserved discipline and she was dishonest with some of her answers during the interview. In addition, neither Ram nor the shop steward object- ed to the interview. "…Regardless of my opinion on how the investigation inter- view was conducted, there is no dispute that [Ram] engaged in repeated acts of dishonesty by engaging in theft of time," said the arbitrator. "Theft of time is considered to be serious mis- conduct." The arbitrator found that the two-day suspension was relatively short, even with the restriction on picking up additional shifts until Ram's next scheduled shift. As a result, the mitigating factors weren't enough to make a deter- mination that the suspension was excessive, said the arbitrator in dismissing the grievance. Reference: Fraser Health Authority and HSA BC. Lisa Southern — arbitrator. Kristy Faris for employer. Stephen Hutchinson for employee. June 2, 2021. 2021 CarswellBC 1860 Interview was conducted while worker was home sick Overtime shift originally refused, then accepted < Suspension pg. 1 < Punishment pg. 1 July 12, 2021 8 Canadian HR Reporter, a Key Media Canada (HR) Ltd. business 2021

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