Canadian Labour Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2014 May 12, 2014 ArbitrAtion AwArds of 2013, when Waring was let go from the North Simcoe Muskoka Community Care Access Centre. The Ontario Nurses' Associa- tion filed a grievance on her be- half, arguing the firing was not only a breach of the collective agreement, but also a violation of the province's human rights code. The union argued her employer failed to accommodate her per- sonal situation and, as a result, acted in discriminatory treatment. As such, the union sought, by way of remedy, that Waring be rein- stated with full redress, including the destruction of all documenta- tion related to the incident — and that the employer "cease and desist their discriminatory treatment" of Waring. According to the employer, War- ing was fired after a continued ab- sence and unavailability for work. In this particular decision, the ex- planations as to why Waring was absent are not important. What is important, however, is the method in which she was dis- missed. The termination letter detailed an explanation of the employer's decision. It also indicated that, within 14 days, Waring would be compensated with termination pay in lieu of notice for a period of eight weeks, amounting to slightly more than $11,500. She would also be entitled to severance pay equal to 15 weeks and three days, or about $22,500. Despite this letter, the employer did not provide Waring with any such pay. Before filing a wrongful termina- tion grievance, the nurses' associa- tion argued the failure to pay Waring the money she was owed under the Employment Standards Act (that is, termination and severance pay) is a procedural matter, and properly subject to an interim order. If the grievance was dismissed, the Employment Standards Act payments will have to be made — meaning the failure to pro- vide the monies at this moment is simply deferring the payments. If, however, Waring is reinstated, those payments could be offset by way of remedial considerations, which would flow from her rein- statement. The employer argued Waring was let go on the grounds the em- ployment relationship had been frustrated. And under the Employment Standards Act, a dismissed em- ployee is entitled to termination and severance pay if the relation- ship had been frustrated, but if it had not been, there is no require- ment for the employer to provide such pay. Herein lies the rub. In filing its grievance, the union challenged the determination of frustration of the employment relationship and took the position Waring should be reinstated. So, the fundamental issue is whether the relationship was frustrated at all. The union's position is contrary — Waring was entitled to termina- tion and severance pay, but it does not agree the employment rela- tionship had become frustrated. The employer further contend- ed that the matter is a substantive one, rather than a procedural one. Because the collective agree- ment makes no mention of these circumstances, the arbitrator based his decision on precedence — concluding that the union's re- quest for an interim order should be denied. In this particular case, the in- terim relief sought by the union is irrelevant to the manner for carry- ing out the arbitration proceedings, Marcotte said. "The difficulty with this sub- mission is that eligibility for termination and severance pay- ments only arises where the em- ployer refuses to or is no longer able to employ the grievor," the arbitrator said in his decision. "Yet, the grievance challenges the propriety of the employer's de- cision to no longer employ (War- ing). Thus, until the propriety of its decision is resolved through the arbitration process, it cannot be determined whether or not the grievor is eligible for termination and severance payments." As a result, he dismissed the union's request for interim relief. Reference: North Simcoe Muskoka Community Care Access Centre and the Ontario Nurses' Association. William A. Marcotte — arbitrator. F. Angeletti and C. Rovis for the employer, J. D'Orsay and T. Smith for the union. April 28, 2014. Manitoba Department of Justice employee's behaviour not justifiable: Arbitrator DAyNA MACDEARMID — an administrative assistant with Manitoba's Department of Justice — was fired on Nov. 14, 2012, for what her employer called "ungov- ernable" behavior. The Manitoba Government and General Employee's Union (MGEU) filed grievances on MacDearmid's behalf, arguing she was subjected to unreason- able scrutiny by her manager and co-workers. The union challenged MacDearmid's termination. MacDearmid was dismissed on Nov. 14, 2012, following an incident that took place on Nov. 8. During arbitration, the employer took the position that even if the events of Nov. 8 are not sufficient on their own to warrant termina- tion, they are worthy of discipline and as such constitute a culminat- ing incident. The union, however, suggested the employer was bundling togeth- er a series of incidents that had not attracted any disciplinary action in an attempt to justify MacDearmid's dismissal. The union further argued that because the various meetings lead- ing up to the "culminating incident" were characterized as non-disci- plinary by the employer, MacDear- mid was lulled into a false sense her conduct was acceptable. On Sept. 25, 2012, MacDear- mid was called into a meeting. Her managers expressed concern about her performance. MacDearmid replied the staff did not need to be micromanaged and accused her superiors of looking for a reason to fire her. A second meeting was held on Sept. 27 to discuss what had taken place in the first meeting. The em- ployer testified MacDearmid was "belligerent" during the meeting, rolling her eyes on several occa- sions. On Oct. 3, 2012, a letter of di- rection was given to MacDearmid addressing her conduct on Sept. 25 and 27. The letter was identified as non-disciplinary and was not cop- ied to the union. On Nov. 7, 2012, MacDearmid was called into another meeting with her managers. At the meeting MacDearmid was given a letter of direction listing several incidents that had taken place in the last month. The incidents included com- menting to a staff member she felt she was being "stalked" by co-work- ers and asking another staff mem- ber if they had been reporting her mistakes to managers. The following day — Nov. 8 — MacDearmid sent three email strings to management, including coworkers in the correspondence. The emails pointed out errors her co-workers had made over the past several months. As a result she was called into another meeting management characterized as non-disciplinary. After management advised her that her conduct was inappropriate, MacDearmid reportedly became belligerent. She was sent home. The union argued that because the meetings and letters of direc- tion were categorized as non-disci- plinary, MacDearmid was deprived the support of a union representa- tive and sent the wrong message re- garding the appropriateness of her behavior. "I do not agree that the message sent in the meetings and letters of direction was unclear or ought rea- sonably to have lulled the grievor into a sense that her conduct... was acceptable," arbitrator Kristin L. Gibson said in her ruling. The grievance was dismissed. Reference: Province of Manitoba and the Manitoba Government and General Employees' Union (MGEU). Kristin L. Gibson — arbitrator. Keith Labossiere for the employer and Helen Krahn for the union. Jan. 21, 2014. < from pg. 1

• Cover