Canadian Labour Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2014 May 20, 2014 ArbitrAtion AwArds dian Union of Public Employees (CUPE), countered that the disci- pline was "unjust." The case came to a head in the spring of 2012, when CUPE served strike notice and, as part of job action, no longer accepted payment of fines or library fees from the public. New was responsible for the delivery, planning, development and evaluation of film theatre pro- grams, including regular contact and negotiations with film distrib- utors. As such, she was not sup- portive of the proposed job action. Of particular concern was that there would be negative implica- tions with the film distributors. As part of her regular duties, New supplies box office reports to film distributors. The library is then invoiced by the distributor based on the audience numbers for the film. When the job action started, New informed her em- ployees they were not to accept payment from moviegoers as ad- mission was to be free. By offering free screenings, New believed the library would be in breach of its contract with each distributor and, further, this might sour the relationship between the two parties. Attendance figures inflated But there were discrepancies in the audience numbers she pro- vided for those free screenings. The numbers New provided were next to impossible, the distribu- tors claimed, especially after se- curity camera evidence showed less people than the number she provided. As a result, the library slapped New with a three-day suspension, arguing her dishonesty in regard to the audience numbers was the tipping point. "Honesty is a touchstone to a viable employment relationship," the library said. The union argued there was a miscommunication and that New misunderstood what she was be- ing asked to provide to the distrib- utors — she had assumed she was to provide box office receipts as opposed to the actual attendance figures. "There is nothing in Ms. New's conduct which could support a finding of fraud... there is no evi- dence of any deceitful or dishon- est intent or attempt to cover-up any conduct," the union argued. This case is about a lack of — and poor — communication, said arbitrator Kenneth Stevenson. He accepted that when New reported to the distributors, she did so on the basis of her belief that due to the free screening, the Regina Public Library was in breach of an obligation to the distributor — which required her to report a full house. Despite not being a contractual obligation, Stevenson believed this to be New's genuine belief. Further, New's performance went above and beyond what was ex- pected of her, something Steven- son referred to as "exemplary." She expressed her concern for the library and her staff, and on the night of the free screen- ing went to the theatre for more than four hours, despite being unscheduled to work. She did not bill the employer for that time. She went out of concern for her staff so she could direct them how to perform the dos and don'ts for the free screening, Ste- venson continued. Her superiors at the library had reached the conclusion that New was dishonest and insubordinate, despite the fact that there was no order requiring her to report the attendance. As such, a three-day suspension was excessive for a mi- nor breach of the trust obligations associated with her role. A clause in the collective agree- ment states the employer agrees "there will be no discrimination directed at any employee by rea- son of membership or activity in the union." As a result, Stevenson ordered a written reprimand in lieu of the suspension, and that the employer compensate New for any mon- etary loss she sustained as a result. Reference: Regina Public Library and the Canadian Union of Public Employees (CUPE) Local 1594. Kenneth A. Stevenson — arbitrator. Brian Kenny and Courtney Keith for the employer, Guy Marsden for the union. Jan. 29, 2014. Hospital sick and tired of nurse's time off Too mucH sick time led to April Murphy's termination. Ontario's Sault Area Hospi- tal dismissed Murphy on May 2, 2012, for frustration of the em- ployment contract. The termina- tion letter included a summary of her yearly absences dating back to April 2004. In the eight years leading to her termination, Mur- phy logged more than 1,315 sick hours — that's about 165 eight- hour shifts. A nurse for 23 years, Murphy was hired by the employer in 1990. In 2002 she became a full- time nurse in the hospital's Pedi- atrics Department and worked in the Neonatal Intensive Care Unit (NICU). The union argued that because the NICU treats babies born pre- maturely — as early as 28 weeks — her patients were exceptionally vulnerable to infectious disease. When she felt unwell, Mur- phy testified, she would call in and leave a message with both her nursing manager and the oc- cupational health nurse. The oc- cupational health nurse would often call Murphy back to ask for signs and symptoms in an effort to track whether or not any con- tagions were spreading in the de- partment. Typically Murphy would be instructed to rest, take fluids and return to work only when she had been symptom-free for 48 hours. The Ontario Nurses' Associa- tion filed a grievance on Murphy's behalf, seeking reinstatement with compensation. The union argued Murphy was fired because her conscientious conduct led to a high absenteeism rate. Murphy's absences due to ill- ness lead her to be placed on the employer's Attendance Manage- ment Program (AMP). At the time of her termination, Murphy had been at the program's sixth and final stage for more than four years. While she was often sick — and had been participating in AMP since the first year of her employ- ment in a full-time capacity — Murphy testified she never con- sidered applying to another area of the hospital as she loved her work within the NICU. She testified she understood reaching stage six in the program could lead to termination for non-culpable absenteeism. The employer argued Murphy is incapable of regular attendance in the future. Serious patient needs require far better atten- dance than the hospital has re- ceived from Murphy in the past, the employer said. Her absences surpass both departmental and hospital averages. The union, however, argued the employer failed to prove Mur- phy's record of absenteeism is so extreme as to have irreparably breached the employment rela- tionship. The legitimacy of her absences has never been chal- lenged, the union said. Despite her best efforts, Mur- phy picked up illnesses in the workplace. Her absenteeism re- cord is above the hospital average, the union argued, only because she faithfully followed policies. The union further argued the hospital's AMP is "too blunt an instrument." The program does not take into account whether employees are full-time or part- time and makes no distinction be- tween departments where infec- tious diseases are more prevalent. Murphy's absenteeism record is being compared to employees that have no contact with pa- tients, such as office staff. Arbitrator James Hayes, how- ever, found no issue with the sta- tistics produced by AMP or their contribution to her termination. "It is also impossible for me to conclude that the hospital has rushed to judgment in this case," Hayes said. "The grievor has been in the AMP for several years… The hospital has also reviewed the grievor's attendance record over a very long time span." Hayes found the evidence provided by the union provided no basis to suggest there is any prospect for improvement in her attendance. The grievance was dismissed. Reference: Sault Area Hospital and the Ontario Nurses' Association. James Hayes — arbitrator. Frank A. Angeletti for the employer, Glen Oram for the union. April 22, 2014. < from pg. 1

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