Canadian Labour Reporter

December 20, 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.

Issue link:

Contents of this Issue


Page 7 of 7

he went to get the lattice. The worker apologized to the manager shortly after the inci- dent, saying that he "hadn't meant for it to happen" and he threw the walkie-talkie out of frustration. He also apologized to the store as- sociates and later said that "I don't like that I acted this way." The store manager determined that the worker had breached Kent Building Store's respect- ful workplace policy. The policy emphasized "courteous conduct" and positive communications" and stated that discipline may fol- low any breach. The manager also found that the damage to the walkie-talkie — which cost $300 for a pair — was "deliberate abuse or destruction of company property" that was an "immediate discharge offence" under the collective agreement's disciplinary rules and penalties. There was no evidence any cus- tomers heard the swearing and no complaints were made against the worker but the company con- sidered the worker's disciplinary history of two written warnings in 2012 and 2013, a two-day suspen- sion in 2015, and a 2017 incident with a written warning. The lat- ter recorded a two-day suspen- sion that was never imposed. The company also considered five non-disciplinary letters in the worker's file as part of his full em- ployment record. On Jan. 24, 2020, the company suspended the worker for five days and warned him that it was his final warning and any further incidents of unsatisfactory be- haviour or not following instruc- tions would result in immediate termination of employment. The suspension letter listed the work- er's full record, including the 2017 suspension and non-disciplinary letters. The union filed a grievance claiming that there were grounds for discipline but a five-day sus- pension was excessive. The arbitrator found that it was likely that the company con- sidered incorrect information re- lated to the 2017 two-day suspen- sion when deciding on the level of discipline. The worker's true disciplinary record amounted to four warnings and one suspen- sion. "The penalty imposed for the incident that is the subject of this grievance was influenced by an incorrect understanding of [the worker's] discipline history as in- cluding a second two-day suspen- sion," said the arbitrator. The arbitrator also found that the worker was truthful at all times and immediately owned up to his misconduct. While the abuse of company property was reckless, the arbitrator believed that the worker didn't intend to break the walkie-talkie and the value of the broken unit was only about $150. It was a "rash and im- pulsive act" that was "a far stretch from industrial sabotage," the ar- bitrator said. The arbitrator found that the worker showed "rehabilitative potential" by accepting respon- sibility and apologizing. In addi- tion, no customers heard the inci- dent, so the company didn't suffer any reputational damage and the worker's profanity-laced tirade wasn't targeted at anyone in par- ticular. However, even with the 2017 two-day suspension removed from the equation, the worker's disciplinary history was notable. Although a five-day suspension was at the higher end of disci- pline, the worker had already re- ceived a two-day suspension and this was a reasonable progression of discipline, said the arbitrator in dismissing the grievance. Reference: IUOE, Local 942 and M.F. Schurman Company. Frank DeMont — arbitrator. James Green for employer. Jason Edwards for employee. Oct. 31, 2021. 2021 CarswellPEI 68 related absences. The policy also allowed employees to use other time-off banks, such as vacation leave, if paid sick time ran out. Smith had no more sick leave or overtime banked after the first two days, so the remaining nine days were unpaid sick leave. Smith tested negative for CO- VID-19 and returned to work after the quarantine period. She successfully applied for the CERB (Canada Emergency Response Benefit) benefit during her ab- sences. Two months later, Smith test- ed positive for COVID-19 and was required once again to en- ter quarantine for 14 days. She missed 10 days of work from June 14 to 25, collecting 11.25 hours in paid sick time over the first two days and, because she had no more paid sick leave banked, the last 8.5 days were unpaid sick leave. She didn't receive the CERB benefit during her second batch of absences. The union filed a grievance over the county's failure to pay Smith wages during her quaran- tines in April and June 2020, argu- ing that the policy of keeping em- ployees off work without pay was unfair and unreasonable. It said that the policy placed the finan- cial burden solely on the employ- ee, causing a long-service em- ployee like Smith to lose 18 days of salary because of the policy's quarantine requirements. The union pointed out that the collective agreement re- quired the county to "make rules and regulations that are reason- able" and to "exercise its rights in a fair and reasonable manner," which it didn't do in creating the COVID-19 attendance pol- icy. It acknowledged that Smith was allowed to use her vacation leave bank for the absences but "the purpose of a vacation is to provide workers with leisure time; to suggest that she use her vacation bank for some other purpose is a misuse of vacation time." The arbitrator noted that there was "no question that [Smith] suf- fered a severe financial loss while being off work." However, for her to be paid during that time, "there must be some contractual or statutory right for such payment." In this case, the collective agree- ment didn't contain any language that entitled a nurse to salary continuation during quarantine periods or self-isolation, nor were there any statutory provisions re- quiring an employer to maintain an employee's salary while off work because of quarantine, said the arbitrator. This absence of any require- ments for salary continuance during a quarantine period made the need to determine the rea- sonableness of county's policy unnecessary, as it would involve creating a new entitlement that was not in the collective agree- ment — which the agreement itself prohibited through a provi- sion that stated that an arbitrator did not have "the power to add to, subtract from or modify any part of the terms of this agree- ment." The arbitrator determined that Norfolk County did not breach the collective agreement and dis- missed the grievance. Reference: Norfolk (County) and UFCW, Local 175. Colin Johnston — arbitrator. Thomas Agnew for employer. Matthew Jagodits for employee. Oct. 15, 2021. 2021 CarswellOnt 15156 No requirement to pay Ontario nurse via contract, legislation Profanity, property damage 'rash, impulsive act': Arbitrator < Breach pg. 1 < Tantrum pg. 1 December 20, 2021 8 Canadian HR Reporter, a Key Media Canada (HR) Ltd. business 2021

Articles in this issue

Archives of this issue

view archives of Canadian Labour Reporter - December 20, 2021