Canadian Labour Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2014 April 28, 2014 Metal Workers Union Local 280 filed — and failed — to reinstate the foreman. Fraser Valley Refrigeration was a family-run operation divided into three parts. Dean Masztalar ran the commercial side, while his brother ran the industrial side. The ebb and flow of the bargain- ing unit was dependent on the number of contracts and amount of work available. As the amount of work wound down and contracts came to a close, management decided to lay off employees. Koster's long years of service played no part in the matter, as the collective agreement had no provisions relating to seniority. In- stead, management said there was a two-year history of poor per- formance and production from Koster. That included circumventing Masztalar and instead going di- rectly to his brother or father in other departments for job-related queries that he felt should have been handled by himself. However, Masztalar main- tained Koster was fired because there was a "shortage of work." The Sheet Metal Workers Union argued it was "not normal" to fire a foreman as opposed to employees in lower positions on the floor. The question to be answered, according to the union, was whether the grievor was laid off or was terminated underthe guise of a layoff? "It is easy for an employer with- out seniority language in a collec- tive agreement to get rid of em- ployees by saying there was a layoff due to a lack of work," the union said. While there is no denying work was slowing down, there was no need for a layoff. But perhaps re- duced hours could have been en- forced, the union added. Fraser Valley saw otherwise. Since more layoffs were com- ing — indeed, 18 other employees were let go following that decision — there was a lack of work. Man- agement said it decided to get rid of Koster because of his perfor- mance, and instead give his duties to two other employees working beneath him in the same shop. "If there is no work for them, the least productive employees will be laid off," Masztalar said during the hearing. "(Koster) was eligible for hire-back, and a letter of reference had been provided to him." In making his decision, arbitra- tor A. Paul Devine said the fun- damental issue in this case was whether or not the termination was legitimate, or done for im- proper reasons. First off, the union's argument that it was suspicious to fire some- one in a position of power ahead of field employees was a moot point, Devine said. The collective agreement made no distinction between the two positions. Similarly, there was no direct evidence of disciplinary intent on the part of Masztalar. "He was undoubtedly frustrated with some aspects of the grievor's work as a foreman. Some of his concerns could be considered to be petty," Devine said in his deci- sion. "Nevertheless, these events took place over an extended peri- od of time during which there had been no disciplinary action taken by the employer." And because the evidence jus- tifying the downsizing was clear, Devine dismissed Koster's wrong- ful termination grievance. The rest remains to be seen. Should there arise an issue con- cerning Koster's reinstatement if and when business picks up to a point that would normally support the hiring of a shop foreman, the union would be at liberty to pursue a new grievance. Reference: Fraser Valley Refrigeration and the Sheet Metal Workers Union Local 280. A. Paul Devine — arbitrator. Christine Masztalar for the employer, Darrell Thompson for the union. March 31, 2014. Foreman claims he was forced out and onto sick leave insteaD oF accommodation, Roy Iannetti said his employer forced him out on sick leave. The Canadian Union of Public Employees (CUPE) Local 993 filed a grievance on Iannetti's behalf against Nova Scotia's Cape Breton Regional Municipality. The union argued the employer failed to ac- commodate Iannetti when, in March 2012, he said he could no longer perform his job as foreman and asked to be reinstated to his former position as a heavy equip- ment operator. Iannetti worked for the employ- er for roughly 30 years. The major- ity of his time was spent as a heavy equipment operator. Roughly 10 years after being promoted to fore- man, Iannetti was diagnosed with a heart condition. He testified he was ordered by his doctor to "stay clear of stress." In 2008 — shortly after Iannet- ti's diagnosis — Lou Ferguson was brought on as manager. Iannetti testified Ferguson was an ineffec- tive manager and failed to support him as foreman. In the months leading up to March 2012, Iannetti reported an increase in confron- tations with employees related to discipline. Without the proper support, Iannetti found the stress related to the position to be too much. He went to see his family doc- tor for a medical note detailing his work-related stress. On March 14, 2012, Iannetti emailed the em- ployer to explain he could no lon- ger carry out the foreman position. Iannetti explained he would take the rest of the week off as vacation days and requested he return to work as a heavy equipment opera- tor the following Monday. Iannetti was told he would have to follow the necessary accommo- dation procedures. Because the doctor's note provided stated Ian- netti could no longer perform his job due to stress, his vacation days were changed to sick leave. Iannetti went to see Dr. Mike Ryan, an independent medical practitioner who supplies oc- cupational health services to the employer. Based on this March 29 meeting, Ryan found Iannetti to be depressed and aggressive. Ryan testified Iannetti was not "fit" to be accommodated at that time. In mid-July 2012, Iannetti was running out of the 120 days of sick leave he had accumulated. He filed an application for Long Term Dis- ability (LTD) benefits. The appli- cation was denied. When Iannetti appealed the decision, it was de- nied a second time. When he learned the result of his appeal, Iannetti decided to re- turn to work. He resumed his du- ties as foreman on Jan. 14, 2013. The grievance was filed on Feb. 15, 2013, and requested Iannetti be awarded "full redress." The union submitted Ryan's opinion Iannetti could not work due to depression was based on stress solely related to his work as foreman. Had Iannetti been ac- commodated, his work-related stress would no longer be an issue. The employer, however, argued Iannetti was not entitled to be transferred into the heavy equip- ment operation just because he asked. Iannetti himself continued to act as if he were totally disabled. He applied for LTD and then re- peatedly appealed the LTD's nega- tive rulings with respect to wheth- er he was disabled. Furthermore, the employer argued, triggering the duty to accommodate does not mean the employee gets to deter- mine what the accommodation is. Sole arbitrator Augustus Rich- ardson agreed with the employer, ultimately dismissing the griev- ance. "The fact that the grievor thought he could perform the task of heavy equipment operator was not, on the evidence, proof posi- tive he could… An employee who alleges that he or she has a disabil- ity is not entitled to self-diagnose," Richardson said. Reference: Cape Breton Regional Municipality and the Canadian Union of Public Employees (CUPE) Local 993. Sole Ar- bitrator Augustus Richardson. Demetri Kachafanas for the employer, Wanda Power for the union. March 28, 2014. < from pg. 1 6 Canadian HR Reporter, a Thomson Reuters business 2014 April 28, 2014 ArbitrAtion AwArds Metal Workers Union Local 280 filed — and failed — to reinstate the foreman. Fraser Valley Refrigeration was a family-run operation divided into three parts. Dean Masztalar ran the commercial side, while his brother ran the industrial side. The ebb and flow of the bargain- ing unit was dependent on the number of contracts and amount of work available. As the amount of work wound down and contracts came to a close, management decided to lay off employees. Koster's long years of service played no part in the matter, as the collective agreement had no provisions relating to seniority. In- stead, management said there was a two-year history of poor per- formance and production from Koster. That included circumventing Masztalar and instead going di- rectly to his brother or father in other departments for job-related queries that he felt should have been handled by himself. However, Masztalar main- tained Koster was fired because there was a "shortage of work." The Sheet Metal Workers Union argued it was "not normal" to fire a foreman as opposed to employees in lower positions on the floor. The question to be answered, according to the union, was whether the grievor was laid off or was terminated underthe guise of a layoff? "It is easy for an employer with- out seniority language in a collec- tive agreement to get rid of em- ployees by saying there was a layoff due to a lack of work," the union said. While there is no denying work was slowing down, there was no need for a layoff. But perhaps re- duced hours could have been en- forced, the union added. Fraser Valley saw otherwise. Since more layoffs were com- ing — indeed, 18 other employees were let go following that decision — there was a lack of work. Man- agement said it decided to get rid of Koster because of his perfor- mance, and instead give his duties to two other employees working beneath him in the same shop. "If there is no work for them, the least productive employees will be laid off," Masztalar said during the hearing. "(Koster) was eligible for hire-back, and a letter of reference had been provided to him." In making his decision, arbitra- tor A. Paul Devine said the fun- damental issue in this case was whether or not the termination was legitimate, or done for im- proper reasons. First off, the union's argument that it was suspicious to fire some- one in a position of power ahead of field employees was a moot point, Devine said. The collective agreement made no distinction between the two positions. Similarly, there was no direct evidence of disciplinary intent on the part of Masztalar. "He was undoubtedly frustrated with some aspects of the grievor's work as a foreman. Some of his concerns could be considered to be petty," Devine said in his deci- sion. "Nevertheless, these events took place over an extended peri- od of time during which there had been no disciplinary action taken by the employer." And because the evidence jus- tifying the downsizing was clear, Devine dismissed Koster's wrong- ful termination grievance. The rest remains to be seen. Should there arise an issue con- cerning Koster's reinstatement if and when business picks up to a point that would normally support the hiring of a shop foreman, the union would be at liberty to pursue a new grievance. Reference: Fraser Valley Refrigeration and the Sheet Metal Workers Union Local 280. A. Paul Devine — arbitrator. Christine Masztalar for the employer, Darrell Thompson for the union. March 31, 2014. Foreman claims he was forced out and onto sick leave Instead oF accommodation, Roy Iannetti said his employer forced him out on sick leave. The Canadian Union of Public Employees (CUPE) Local 993 filed a grievance on Iannetti's behalf against Nova Scotia's Cape Breton Regional Municipality. The union argued the employer failed to ac- commodate Iannetti when, in March 2012, he said he could no longer perform his job as foreman and asked to be reinstated to his former position as a heavy equip- ment operator. Iannetti worked for the employ- er for roughly 30 years. The major- ity of his time was spent as a heavy equipment operator. Roughly 10 years after being promoted to fore- man, Iannetti was diagnosed with a heart condition. He testified he was ordered by his doctor to "stay clear of stress." In 2008 — shortly after Iannet- ti's diagnosis — Lou Ferguson was brought on as manager. Iannetti testified Ferguson was an ineffec- tive manager and failed to support him as foreman. In the months leading up to March 2012, Iannetti reported an increase in confron- tations with employees related to discipline. Without the proper support, Iannetti found the stress related to the position to be too much. He went to see his family doc- tor for a medical note detailing his work-related stress. On March 14, 2012, Iannetti emailed the em- ployer to explain he could no lon- ger carry out the foreman position. Iannetti explained he would take the rest of the week off as vacation days and requested he return to work as a heavy equipment opera- tor the following Monday. Iannetti was told he would have to follow the necessary accommo- dation procedures. Because the doctor's note provided stated Ian- netti could no longer perform his job due to stress, his vacation days were changed to sick leave. Iannetti went to see Dr. Mike Ryan, an independent medical practitioner who supplies oc- cupational health services to the employer. Based on this March 29 meeting, Ryan found Iannetti to be depressed and aggressive. Ryan testified Iannetti was not "fit" to be accommodated at that time. In mid-July 2012, Iannetti was running out of the 120 days of sick leave he had accumulated. He filed an application for Long Term Dis- ability (LTD) benefits. The appli- cation was denied. When Iannetti appealed the decision, it was de- nied a second time. When he learned the result of his appeal, Iannetti decided to re- turn to work. He resumed his du- ties as foreman on Jan. 14, 2013. The grievance was filed on Feb. 15, 2013, and requested Iannetti be awarded "full redress." The union submitted Ryan's opinion Iannetti could not work due to depression was based on stress solely related to his work as foreman. Had Iannetti been ac- commodated, his work-related stress would no longer be an issue. The employer, however, argued Iannetti was not entitled to be transferred into the heavy equip- ment operation just because he asked. Iannetti himself continued to act as if he were totally disabled. He applied for LTD and then re- peatedly appealed the LTD's nega- tive rulings with respect to wheth- er he was disabled. Furthermore, the employer argued, triggering the duty to accommodate does not mean the employee gets to deter- mine what the accommodation is. Sole arbitrator Augustus Rich- ardson agreed with the employer, ultimately dismissing the griev- ance. "The fact that the grievor thought he could perform the task of heavy equipment operator was not, on the evidence, proof posi- tive he could… An employee who alleges that he or she has a disabil- ity is not entitled to self-diagnose," Richardson said. Reference: Cape Breton Regional Municipality and the Canadian Union of Public Employees (CUPE) Local 993. Sole Ar- bitrator Augustus Richardson. Demetri Kachafanas for the employer, Wanda Power for the union. March 28, 2014. < from pg. 1 Work shortage behind termination, arbitrator rules

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