Canadian Labour Reporter

FEBRUARY 10, 2014 8 Canadian HR Reporter, a Thomson Reuters business 2014 Continued from page 6 ceptable… he was not misjudging the distance but was care- less and unsafe." Brown said he found it especially troubling that Walter stated, by his judgment, the drivers were safe. He ruled it is not up to an individual employee to pass judgment on what is safe and what is not, saying the employer put specific safety procedures into place for a reason. Because Walter put his coworkers at serious risk several times and minimized the seriousness of the matter, Brown ruled the termination reasonable and as a result, dismissed the grievance. Reference: Teck Coal Limited and the International Union of Op- erating Engineers Local 115. Mark J. Brown — Arbitrator. David T. McDonald for the employer, Brandon Quinn for the union. Jan. 20, 2014. One too many chances given to city staffer, judge rules THREE STRIkES AND you're out — for good. Armando Villar was recently told that by an arbitrator after a failed attempt to grieve suspensions, a letter of expectation and a dismissal from his job as a food service worker at Seaton House, a city-run men's shelter in Toronto. Villar was fired by the city in 2011 after several unexplained absences. That was after a 10-day suspension, a five-day suspension before that and a one-day suspension prior to that. After working for the City of Toronto part-time, he became a full-time worker in December of 2009 and had been em- ployed for about 16 years overall. But with added responsibility comes added pressure, which evidently proved too much for Villar to handle — especially apparent during the first three months on the job, which was littered with unannounced, unexplained and unsubstantiated absences. Following his eventual termination, Villar filed a grievance through his union, the Canadian Union of Public Employees (CUPE) Local 79. According to CUPE, Villar suffered a disability, namely depression, which prevented him from meeting employment requirements. "The fact that the grievor had never acted this way in his 14 years of prior, part-time employment and his own testimony is more than sufficient to establish the causal link between his depression and his conduct," CUPE said during the hearing. But the city disagreed, arguing that even if Villar suffered from depression, there was nothing to keep him from inform- ing his managers of the reasoning behind his erratic behaviour. "Even if the grievor were found to have been suffering from depression at the time of the events, there is no evidence that it rendered him incapable of doing the things for which he was disciplined and discharged — keeping the city properly informed as to his absences, including providing the neces- sary medical documentation even after the fact," the City of Toronto said. Proof is in the pudding Evidence from doctors led Russell Goodfellow, the arbitrator presiding over the case, to the conclusion that Villar did in- deed suffer from some form of depression and had been seek- ing treatment. As one doctor put it, "any other restrictions to Armando (Villar's) ability to return to work and work in a full and consistent manner (such as) poor concentration, constant rumination, withdrawn, nervous, lack of self-confidence and motivation and initiative, voice tremors and weakness. Not fit to work." However, although Goodfellow found Villar to indeed have suffered depression, the question is whether the de- pression was the root cause behind his failure to meet his employment obligations. Medical evidence would be required to establish that link, the city said, and the absence of any form of proof justifies the termination. But the union maintained the grievor was not attend- ing work because he couldn't work, and was not keeping the city properly informed simply because he couldn't keep the city informed — his disability stopped him from doing exactly that which he should have been, demonstrating his lack of ability to perform on the job. "Without such evidence, in my opinion, the union runs the substantial risk of a finding that the onus had not been met — a risk that increases, not decreases with the scope and extent of the behaviour that is in issue," Goodfellow said in his decision. "That is precisely the situation here. There is no medical evidence that addresses or even touches the point." Essentially, there were many questions left unanswered. Of particular concern — and the tipping point for the arbi- trator — is that the city provided Villar with ample opportu- nity to justify his unexplained absenteeism. "Once again I find myself in agreement with the city," Goodfellow said. "As I observed in the hearing, in only a partially success- ful effort to curtail yet more evidence on the point, there can be no question that the city went to anything less than great lengths to try to assist the grievor in meeting his employ- ment obligations. The city did not leap to discipline — far from it." That Villar failed to offer explanation was his downfall. While Goodfellow determined his disability to be a very real and debilitating one, there was nothing preventing him from at one point in time, informing his employer. Thus, the grievance was dismissed, and Villar was not able to return to his job. Reference: City of Toronto and the Canadian Union of Public Em- ployees (CUPE) Local 79. Russell Goodfellow — arbitrator. Robert Church for the employer, Douglas Wray for the union. Jan. 15, 2014.

• Cover