Canadian Labour Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2014 May 26, 2014 ArbitrAtion AwArds operations in Delta, B.C. Work- ing simultaneously at those three worksites meant she was covered by three collective agreements. When interviewing for the li- censing officer position, Gill men- tioned the possibility of work on weekends, and her interviewer said it would be fine — as long as it did not interfere with her role and du- ties as a licensing officer. Because that position required inspection times in the field, start and finish times were flexible. The job was also considered complex and demanding — officers con- duct investigations at health facili- ties and child care operations that may involve complaints pertain- ing to emotional, physical or finan- cial abuse. However, any deviations from regular work hours required no- tice to the supervisor. In this re- gard, Gill acted unreliably, arbitra- tor Mark Brown determined. Shortly after being hired on as licensing officer, Gill was offered another temporary position at a facility in Abbotsford, B.C., when discrepancies from her timekeep- ing began to crop up, warranting further investigation. Her em- ployer expressed concerns she was "double-dipping." Managers from the authority compared Gill's licensing officer schedule to the schedule at Val- ley Home Support and discovered that, between February 2012 and March 2013, there were 37 dis- crepancies. Of those dates, 29 days showed start times at Valley Home Sup- port prior to the end of her shift as licensing officer. For the rest of the days, the Valley Home start time was shortly after the end of her li- censing officer shift. For the remaining seven days in question, Gill said she did not take a coffee break and used banked time to leave early in order to make her Valley Home shift. Records of the alarm's deactiva- tion system showed Gill further did not report for work at the time indicated. In fact, her asserted start times compared to the actual times on the alarm system varied from three to 22 minutes. In making his decision, Brown determined Gill did not intend to mislead her employer regarding holding multiple positions. The real issue was on the days when Gill was scheduled to work at Valley Home at a time that con- flicted with her licensing officer hours of work, Brown said. Did she violate any employer policies, falsify time sheets or use the time inappropriately? She clearly had a view that the hours of work were flexible, be- yond the stated policy and prac- tice. However, even if given the benefit of the doubt, Gill did not advise her employer of her us- age of banked time. After all, an employer has the right to assume time sheets are being completed honestly. The question is whether Gill actually did not work some of the time claimed and was therefore dishonest with respect to time re- porting — and Brown concluded she was dishonest on at least eight occasions. "What I do know is that Gill did not start when she said she did, and used the early start time in conjunction with working through a break and/or banked time to leave early to work at (Val- ley Home). In doing so, she was dishonest with respect to time reporting," Brown said in his deci- sion. "I conclude this was not an error. Someone who is calculating time that closely would surely cal- culate start times accurately, if so desired." That, coupled with the fact that Gill was not a long-term employee and that the licensing officer posi- tion is one who works indepen- dently and requires a high element of trust, the issue was not an iso- lated one. Therefore, the grievance was dismissed, and the termination stood. Reference: Fraser Health Authority and the B.C. Government and Service Employees Union. Mark J. Brown — arbitra- tor. Dave Hanacek for the employer, Mike Fenton for the union. May 5, 2014. Inappropriate emails lead to termination Roy LudLow became an ex-employee after he accessed X- rated content using his company email account. Ludlow was fired after his em- ployer, Invista (Canada) Company, found him in violation of its Ac- ceptable Electronic Use and Of- fensive or Harassing Communica- tions policies. He was discharged after the Kingston, Ont.-based employer discovered Ludlow at- tempted to forward three "in- appropriate and unacceptable" emails from his company account to his personal external email ad- dress on Jan. 9, 2013. The discovery was made af- ter the company's image analysis tool tagged several emails from Ludlow's account as containing inappropriate material. Follow- ing an investigation it was found Ludlow received several inap- propriate emails with embedded photographs, and that he retained the inappropriate material on his company email account for up to 12 weeks. The employer found Ludlow to have engaged in serious culpable misconduct and dismissed him on Jan. 17, 2013. Ludlow's union, the Kingston Independent Nylon Workers Union, filed a grievance on his be- half, requesting the termination be substituted for a lesser penalty. The emails were sent to Ludlow by his girlfriend's brother-in-law. In total, six emails containing 80 explicit photos were sent to Lud- low between Oct. 29, 2012, and Jan. 5, 2013. On Jan. 9, 2013, Lud- low forwarded three of the emails to his personal email address. Afterward, he deleted the emails from his company account. At a meeting with his supervi- sors the following day Ludlow admitted he knew the emails contained inappropriate mate- rial when he opened them. The email subject lines included "Fw: No Small Eyes!!!XXX" and "FW: I KNOW ALL THE BOYS NEED A LITTLE HOLIDAY CHEER XXX." He said he forwarded the emails to his home account in an effort to move them off the com- pany system. Ludlow said he could not remember if he had opened each email in question and said he did not recall looking at the explic- it photos in each email. When asked about the long pe- riod of time he retained the emails, Ludlow said vacation time and work restrictions prevented him from thoroughly checking all of his emails. In arbitration, how- ever, Ludlow testified he checks his work email twice every day. He testified that what he did was wrong, saying he had learned his lesson and would not make the same mistakes again. The employer requested Lud- low's grievance be denied, em- phasizing the seriousness of his violations as well as his attempts to minimize his misconduct and his dishonesty during the investi- gation process. The employer also emphasized the importance of de- terrence against future violations. The union requested Ludlow's seniority, disciplinary record and performance evaluations be taken into consideration in support of substituting another penalty for discharge. Additionally, the union asked Ludlow's acknowledgement of his culpability be considered. "There is no dispute that the embedded photographs as a whole were degrading, and were disre- spectful to women," sole arbitrator Randy L. Levinson said in his rul- ing. "They objectify women, and have no place at the Invista site." Taking into account both the employer and the union's argu- ments, as well as Ludlow's testi- mony, however, Levinson found it was Ludlow's discharge that was inappropriate. He substituted the dismissal for a suspension without compensation, but without a loss of seniority. "I am satisfied that Mr. Lud- low is truly contrite, that he has learned from his mistakes, and that he will not repeat his inexpli- cable behavior, given the experi- ence of his many years of service, his minor disciplinary record, and his most recent performance evaluations, where he met expec- tations for compliance." Reference: Invista Company and the Kingston Independent Nylon Workers Union. Randy L. Levinson — arbitrator. Rob- ert W. Little for the company, Michael Hancock for the union. May 5, 2014. < from pg. 1

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