Canadian Labour Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2014 May 5, 2014 ArbitrAtion AwArds approval from his doctors. But he could no longer per- form his duties as an instrument mechanic and instead his em- ployer accommodated his return to work under a new position in the shop and engineering de- partment. In February of 2009, he fell ill with pneumonia and took time off. A few weeks later, he was laid-off because of an indefinite mill curtailment. He applied for short-term benefits for the time period be- tween his illness and layoff — but his employer refused the claim. Complicating the matter was that both of Kaardal's doctor's had differing opinions on when he should return to work and whether his bout of pneumo- nia was related to his MS, which would affect his short-term ben- efit eligibility. Unifor Local 1123 filed a grievance on his behalf, arguing the progression of the disease entitled him to disability ben- efits. More specifically, "(Kaardal) was disabled as a result of mul- tiple sclerosis. Pneumonia trig- gered the worsening of his symp- toms such that, in retrospect, he was unable to work as of Febru- ary that year," the union argued, basing its evidence on medical information. The employer — and in turn the insurance provider — failed to investigate discrepancies between medical opinions or conduct an inquiry. Further, the union went on to say, the car- rier assumed — wrongly — that no benefits are payable during a layoff. On the other hand, Catalyst Paper dismissed the union's claims as "idiosyncratic." Unifor's submissions ignored the language in the collective agreement, and it dispensed with the concept of "burden of proof," the employer argued. While not seeking to impugn Kaardal's doctors' credibility, the employer claimed the doctor's declaration stating he was able to return to work was advocacy dis- guised as opinion. "In other words, the evidence of (the doctor) — who conceded he is 'non-judgmental' regarding Kaardal's subjective symptoms — lacks not so much credibility as reliability," the employer said. Essentially, there was no ob- jective evidence saying there was a change in Kaardal's MS symp- toms during the time period in question — and it remained that when he had a case of pneumo- nia, he was not disabled due to multiple sclerosis. Joan McEwen, who heard the grievance, agreed with Catalyst Paper. Citing mainly a lack of evi- dence, she agreed with the re- sponse of the insurance carrier, which stated, "As your physician has indicated that you were fit to return-to-work effective Feb. 27, 2009, I am unable to determine that you continue to be totally disabled." As such, Kaardal's grievance was denied. Reference: Catalyst Paper Corporation and Unifor Local 1123. Joan McEwen – arbitrator. Donald Jordan for the employ- er, Patricia Deol for the union. April 7, 2014. Worker's failure to follow safety rules – even for 30-seconds – justifies termination: Arbitrator SCAffOLDER GORDOn Clarke was fired from the Long Harbour Construction project when he failed to comply with the site's safety requirements. Newfoundland and Labrador- based KBAC Constructors ter- minated Clarke after an investi- gation determined he neglected to tie off above six feet. The employer's safety require- ments include several site safety absolutes. One of the site safety absolutes requires employees to use fall protection — commonly known as being tied off — when working at heights of more than six feet. There is zero tolerance for non-compliance with a site safe- ty absolute. On Aug. 24, 2012, Clarke was found working at a height of about seven feet, leaning out over the end of the scaffold, and not tied on. He was wearing a harness on his chest but was not hooked into any restraint system. He testified he had completed most of the work in the first part of his shift, during which time he was tied-off. After his lunch break Clarke noticed a piece of scaffolding that needed to be adjusted. He testified he was not above six feet for more than 30 seconds with- out proper fall protection. Clarke could not explain why he was not tied off during the in- cident. Clarke was escorted off the worksite and informed he was suspended pending an investiga- tion into the incident. Bryan Reese, operations man- ager, testified Clarke was dis- tressed as he was escorted off the site. Clarke apologized, admitted he was wrong and repeatedly requested a warning in place of more serious discipline. Following the investigation Clarke was fired on Sept. 1, 2012. The Resource Development Trades Council of Newfound- land and Labrador (RDTC) grieved on Clarke's behalf. The union requested Clarke be reinstated with full benefits and lost wages. Alternatively, the union asked his dismissal be sub- stituted for a warning or a short suspension. At the time of the incident there was no documented dis- cipline on Clarke's record. He admitted he was wrong, had apologized for his actions and co-operated with the employer. The investigation did not con- sider any mitigating factors, the union submitted. The Long Harbour Employ- ers Association — representing KBAC Constructors in arbitra- tion — submitted the company's zero tolerance of violations of site safety absolutes was neces- sary to achieve the goal of a safe workplace. The rule applies whether an employee is working at seven feet or 30 feet, and regardless of the length of time an employee spent working at height. The six foot tie-off rule was unilaterally imposed by the em- ployer and is recognized as com- mon practice in the construction industry. Whether Clarke was negligent or simply forgetful, the employer argued, serious discipline was justified. Sole arbitrator James C. Oak- ley agreed with the employer. Oakley ruled the six foot tie- off rule is reasonable, adding the rule was clear and unequivocal. "(Clarke's) breach of the rule was not trivial or insignificant," Oakley said in his ruling. "He knew he was in violation of the rule. He had no explana- tion for the violation. The fact he was in violation of the rule for a brief period of time does not make the offense trivial. There are no compelling mitigating circumstances, having regard to the grievor's personal circum- stances, employment record and length of employment on the construction site." Oakley found the employer had just cause to discharge Clarke and denied the grievance. Reference: Long Harbour Employers Association and the Resource Development Trades Council of Newfoundland and Labrador. James C. Oakley — Sole arbitrator. Darren Stratton for the employer, Peter O'Flaherty for the union. Dec. 12, 2013. < from pg. 1

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