Canadian Labour Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2014 May 26, 2014 ArbitrAtion AwArds had attendance issues, leading to his termination in 2012. After he was fired, he attended a four-week rehabilitation program, the third he had attended since 2003. Following a stamp of approval from his rehab clinic, he was reinstated under a last chance agreement. In December of that year, Fri- esen failed an alcohol test, one of the terms of the last chance agreement that warranted termi- nation, according to New Flyer. But after conversations with his union, Unifor, Friesen was grant- ed another chance in the form of an amended last chance agree- ment. That contract required Friesen to undergo bi-weekly alcohol and drug testing. He failed again a few weeks after signing, resulting in his third termination. Unifor argued honesty should play into mitigation, as should the grievor's length of service and re- habilitation potential. In particular, the union pointed to the rehab clinic's final assess- ment of Friesen, which said the patient had a 100 per cent chance of succeeding in full rehabilita- tion. Because the employee was trying to succeed and there was plenty of positive evidence indi- cating as much, he should be given another chance. "The grievor has come to the employer for support and has sought help, and thus should be reinstated," Unifor argued at the hearing. But, as New Flyer argued, Fri- esen was let go mainly because of "the risk involved to both the grievor and to co-workers if someone is to do his job as a ma- chine operator while under the in- fluence of alcohol." Furthermore, the case should be legally straightforward. Coun- sel for New Flyer argued that, as evidenced by the drafting of the second last chance agreement, management had done its due diligence in accommodating Fri- esen. Therefore, violation of such a legally-binding contract would warrant termination. "If employers knew that last chance agreements would not be enforced by arbitrators they would not utilize them and em- ployees would lose opportunities to have a further chance," the em- ployer said. Bottom line, there is a limit on an employer's obligation to ac- commodate a disabled employee — a limit that had been reached in this case, and there was no ob- ligation to further accommodate the employee. But progress is a steady climb, Michael Werier said in his decision. While last chance agreements are normally to be enforced by law, especially in cases such as Fri- esen's where he was given two last chances, the nature of alcoholism poses significant challenges. "It is widely accepted that al- cohol addiction is an illness and a recognized disability under the human rights legislation. It is also widely accepted that it is not easy to 'beat' the illness and relapses often occur," Werier's decision reads. "I am satisfied that (Fries- en) is doing everything possible to maintain sobriety." He added that the case war- rants reinstatement, which would not constitute undue hardship. As part of the new terms, Friesen would be reinstated as soon as is convenient for both parties, he shall not receive any back pay but be returned to the same senior- ity level, abstain from alcohol and non-prescription drug use and at- tend regular AA meetings. He will also be subject to random testing at the workplace — any positive results of which will result in im- mediate discharge. "But this will be his final chance," Werier added. "Given his past history, any further reoccur- rences will not be acceptable." Reference: New Flyer Industries Canada and Unifor Local 3003. Michael D. Werier — arbitrator. Kristin Gibson for the employer, Ken Stuart for the union. Feb. 24, 2014. Long-term care aide fired for abuse Resident abUse constitut- ing gross misconduct led to the dismissal of Marc Lacelle, a spe- cial care aide at the Saskatche- wan-based Wascana Rehabilita- tion Centre. Lacelle was fired by the Regina Qu'Appelle Regional Health Au- thority on March 22, 2012. The Canadian Union of Public Em- ployees (CUPE) Local 3967 filed a grievance on his behalf, request- ing reinstatement with full re- dress. Working in the employer's Veterans Unit, Lacelle provided long-term care for 33 residents. Lacelle was fired for abuse against Resident A. At the time of the incident Resident A had dementia and required total care for most aspects of his daily liv- ing. Because Resident A was somewhat mobile, his bed was equipped with an alarm to alert staff should he sit up or crawl out of bed. On the evening of Feb. 29, 2012, Resident A was put to bed at about 1 a.m. Over the next hour, his bed alarm was triggered several times. Mila Lauagan, a special care aide working with Lacelle, testified that at 1:45 a.m. the alarm went off yet again, prompting Lacelle to say "I've had enough of this shit." Lauagan testified she followed Lacelle to Resident A's room. Lauagan said she checked Res- ident A and determined he was wet. Because the resident was making noises and waving his hands, signs she took to mean he did not want to be touched, Lau- agan suggested they give Resi- dent A time to calm down before completing the change. She testified Lacelle repeated he had "had enough of this shit," before pulling the resident onto his side, restraining the resi- dent's hands and lifting his leg onto the resident's thigh to hold him down. Lauagan said she completed the change before reporting the incident to a man- ager. On March 5, Lacelle was ad- vised not to come into work due to an ongoing investigation into the incident and on March 6 he was suspended with pay pending the outcome. During arbitration, Lacelle tes- tified he somehow tripped during the change, falling onto the resi- dent. He said it was at that point he said, "I've had enough of this shit." Lacelle said the fall prompt- ed the outburst, but that he had been referring to life in general, and not Resident A in particular. Lacelle testified he was going through a difficult period per- sonally at the time in terms of his marriage, his struggle with Multi- ple Sclerosis and a recent decision to stop taking anti-depressants. Lacelle acknowledged his con- duct was unprofessional, but said the words were simply blurted out and not directed at Resident A specifically. The employer argued Lacelle's refusal to accept responsibility for his misconduct, show remorse or provide an apology prove he can- not be expected to conform to ac- ceptable standards of behaviour in the future. The employer further argued his actions were taken in front of a co-worker and there was cause for concern what might occur when no one else is present. The union requested mitigat- ing factors be taken into account, noting Lacelle's previously good employment record as well as his personal situation and health status at the time of the incident. The union submitted termina- tion was excessive in Lacelle's case and requested a lesser pen- alty be substituted. The arbitration board found Lacelle's handling of Resident A constituted physical abuse. His repeating the explicit words in the presence of the resident was found to be an aggravating as- pect of the abuse. Regardless of an individual's personal problems, the board ruled, "a very high level of self- control is of necessity required by caregivers in the health care field." Because Lacelle continued to deny the conduct and failed to show any remorse, the board found lesser progressive disci- pline was unlikely to be rehabili- tative. The grievance was dismissed. Reference: Regina Qu'Appelle Regional Health Authority and the Canadian Union of Public Employees Local 3967. Arbi- tration board: Kenneth A. Stevenson (chair), Terry Steininger (employer nominee) and Andrew Huculak (union nominee). Lynn Sanya for the employer, Mira Lewis for the union. May 5, 2014. < from pg. 1

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