Canadian Labour Reporter

September 6, 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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and a written warning for his performance and his "poor atti- tude." The written warning stat- ed that a failure to improve could lead to further discipline, up to possible dismissal. Later that month, several em- ployees, including Lagacé, were laid off due to the COVID-19 pandemic. Lagacé was recalled one month later and both his supervisor and the shop fore- man spoke to him about his at- titude and performance before the layoff. Over the next couple of months, Lagacé's performance improved and management had no issues with his attitude. On the afternoon of July 7, Lagacé was assigned to change the oil in a customer's car and put four tires in it. He drove the cus- tomer's car past his work station into the shop to put the tires in the vehicle. However, rather than reversing it back to his station, he drove it around the building — he said he was following the "traffic flow" — and accelerated to see "what was the pick-up of the car" before pulling into his station to change the oil. Another employee who had been outside reported that he had seen Lagacé driving around the building and doing "pull," which the supervisor under- stood to be a fast acceleration. The employee said that the tires had squealed and the vehicle was going faster than it should have been given the amount of traffic and people in the area. Another employee reported hearing the engine revving and the tires squealing. The supervisor questioned Lagacé about the incident. Lagacé said he only accelerated "a little bit, but not enough to say." The supervisor sent Lagacé home for the rest of the day while he investigated further. Management reviewed secu- rity camera footage that showed Lagacé driving around the build- ing, taking a corner and speeding up. They decided to terminate his employment on July 9 for abusing a customer's vehicle and driving in an unsafe manner in a high-traffic area. Lagacé apologized for his ac- tions and explained that the cus- tomer's car was "one of his dream cars" and when he got in it he felt "like a 16-year-old boy again." The supervisor told Lagacé that the customer was irritated and had threatened to expose the in- cident on social media. However, the customer had actually called for a different reason, and the su- pervisor had missed the call. The union grieved the dis- missal, claiming that it was with- out reasonable grounds or just cause and therefore it violated the collective agreement. The arbitrator noted that Lagacé admitted to accelerat- ing the customer's car — an ac- tion that caused a safety risk and served no legitimate business in- terest for the dealership. As a re- sult, just cause was established, the arbitrator said, adding that it potentially put the safety of cus- tomers and employees at risk, which deserved discipline. However, the arbitrator found that, although Lagacé had an oral warning and a written warning on his record, his per- formance and attitude had im- proved since his layoff. He also never tried to hide his miscon- duct and apologized for his be- haviour, demonstrating aware- ness that what he had done was wrong. The arbitrator also found that management lied about the customer and there was no evidence that the cus- tomer complained. The arbitrator determined that termination was excessive and ordered the dealership to re- instate Lagacé with a one-month suspension. Reference: Unifor, Local 4501 and Baig Blvd. Motors. Michel Doucet — arbitrator. James LeMesurier for employer. Kim Power for employee. April 12, 2021. 148 C.L.A.S. 184. Sunday, Aug. 2, but was denied. A month later, she requested both Aug. 1 and Aug. 2, but was again denied because there wasn't suf- ficient staff to work those days. A couple of weeks later, she again asked for Aug. 2 off and this time it was approved. On the morning of Aug. 1, Mundy called in sick. Because it was a day she had previously re- quested off, it triggered an inves- tigation. An investigator checked social media and learned that Mundy had gone out of town for the weekend with her husband to celebrate their anniversary. At an investigation interview on Aug. 15, Mundy maintained that she had felt sick on Aug. 1. She said she and her husband had previously planned to go away, but she couldn't get the weekend off. However, they decided at the last minute to go out of town be- cause her in-laws had offered to look after their kids — something she said hadn't happened in six years. Mundy said she had planned to work on Aug. 1 with the ho- tel's WiFi and she didn't think she needed to check to work away from home, although she handled private customer infor- mation. She said that she had felt better that afternoon and went with her husband to pick up a new truck "after my shift would have ended anyway" — but later said it was earlier, before the end of her shift. She said she could get a doctor's note, but otherwise couldn't demonstrate that she was sick. On Aug. 19, ICBC terminated Mundy's employment for being dishonest as to why she couldn't attend work on Aug. 1 and failing to be forthright in the investiga- tion. The union argued that the case against Mundy was circum- stantial. The arbitrator expressed con- cern with Mundy's credibility, as she was unable to produce a re- cord of her hotel booking to prove it was last-minute. Her father-in- law testified that they helped with the kids frequently, so it wasn't true that it had been six years since they had offered to care for them. Mundy's changing of the time when they picked up the new truck also hurt her credibility, said the arbitrator. The arbitrator found that Mun- dy didn't check in with her man- ager about working elsewhere and hid the weekend trip until confronted with it. "Considering the entire course of events, it is reasonably proba- ble that [Mundy] was not intend- ing to work on Saturday," said the arbitrator. "It was part of a plan to get the weekend trip that was denied by the request manager system." The arbitrator found that sick leave abuse is a "serious form of dishonesty" and Mundy's eva- siveness and lack of remorse during the investigation aggra- vated her misconduct. It was also planned and premeditated, which outweighed her six years of discipline-free service, said the arbitrator in upholding the dismissal. Reference: Insurance Corp. of British Columbia and Moveup (COPE, Local 378). Arne Peltz — arbitrator. Chris Leenheer, Ellen Ferguson for employer. Cathy Hirani for employee. April 7, 2021. 148 C.L.A.S. 152 Adjuster called in unwell after vacation request denied Recent improvements outweigh past in instituting discipline < Sick leave pg. 1 < Joyride pg. 1 September 6, 2021 8 Canadian HR Reporter, a Key Media Canada (HR) Ltd. business 2021

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