Canadian Labour Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2014 June 23, 2014 ArbitrAtion AwArds ter is that, because the suspen- sion was issued on Dec. 19, that meant Whitney was technically suspended over the Christmas holidays. As such, Tembec did not pro- vide holiday pay for Dec. 24, 25 or 26 — three of the statutory holi- days employees are paid for, as per the collective agreement. His union, the United Steel- workers (USW) Local 1-1000, submitted that, whether disci- pline was warranted or not, Whit- ney was entitled to holiday pay. At the start of the shift in ques- tion, Whitney reported for duty as usual, but there was a hold-up on the assembly line left over from the previous shift, stalling work. Like the rest of the em- ployees working on his side of the plant, Whitney stood and waited until the line started moving again (a problem being sorted by other employees). His supervisor inquired whether anything was the mat- ter, as he described Whitney's de- meanor as being "distressed." Later on, with the assembly line at a standstill, the supervisor asked again. He had also asked the day prior, as he said his employ- ee's mood was troubling. Whitney replied by saying he did not feel good after all and, without waiting for a response, left it at that and went home for the day. Discussing his conduct in a meeting the following day, Whit- ney offered no explanation for his behaviour and even went as far as to suggest his supervisor was in- competent. USW filed a grievance, arguing the suspension was excessive and that the lost holiday pay be remit- ted in full. Tembec disagreed. In the disciplinary notice, the employer argued the discipline for Whitney's "act of insubordi- nation" was more than warranted and he should not receive any hol- iday pay. "(Whitney's) shift was left short-handed, creating (an) extra workload for Mike's co-workers as well as undue hardship for the sawmill," the employer said. Walking off the job, in a ticked- off mood, without cause, notice or permission, is the very defini- tion of insubordination, said arbi- trator Dana Randall. As a result, Randall dis- missed USW's protests regard- ing the suspension. However — reluctantly — Whitney was compensated for the holiday pay he did not receive, as opposed to amounting to collateral damage. "The loss of the three statutory holidays is another matter," Ran- dall's decision reads. "The griev- or has long service, he appears to have a depressive disorder… While the latter does not, in all of the circumstances, excuse his conduct, it mitigates it to some degree." In the end, Whitney's suspen- sion stood, but he was paid for the Christmas holidays. Reference: Tembec Enterprises Inc. and the United Steelworkers (USW) Local 1-1000. Dana Randall — arbitrator. Kevin MacNeill for the employer, John Goldthorp for the union. June 4, 2014. Demotion leads to accusation of discrimination AFTER BEiNg SUSPENDED and demoted, Daniel Moore suf- fered from so much anxiety he was forced to take sick leave. Moore — along with the Cana- dian Union of Public Employees (CUPE) Local 759 — filed three grievances against his employer, the regional municipality of Cape Breton in Nova Scotia. The union requested Moore be reinstated to his former position as working foreman and be com- pensated by way of any lost wages and benefits during his time on sick leave. But the employer argued Moore's discipline was warranted and unrelated to his sick leave, calling for all three grievances to be dismissed. Moore worked for the employ- er for 34 years in the Public Works central division's water depart- ment. In 2010 and 2011 Moore was given verbal warnings for his personal use of the employer's vehicles, eventually leading to a one-day suspension in December of 2011. In the same letter of discipline, Moore was demoted for failing to follow procedure while respond- ing to calls for service during the same time period. On Dec. 14, 2011, Moore went to see his family physician and was given a note that deemed him off work for medical reasons, in- definitely. Moore suffered from an anxi- ety disorder for a decade leading up to his demotion. He was diag- nosed in April of 2003. There was no evidence his condition was disabling in any way before his suspension and demotion. Moore testified the stress re- lated to this discipline rendered him unable to work. The third grievance addressed the alleged discrimination against Moore on the basis of his anxiety disorder. Scott Thomas, the employer's diversity officer, conducted an investigation of Moore's suspen- sion and demotion. He found the employer had acted inconsistent- ly when it demoted Moore and, in September of 2012, Moore was returned to his position as work- ing foreman. Following his return to work, the union continued to explore Moore's claim for any lost com- pensation while he was off work on sick leave. The employer argued there had been no financial penalty. Despite being demoted, the employer tes- tified Moore was compensated at the working foreman rate during his sick leave. The union argued Moore had still sustained a loss, as he was forced to use his sick leave because of his work-related anxiety. Arbitrator Augustus Richard- son addressed each grievance in- dividually. The grievance relating to Moore's one-day suspension was dismissed. The evidence was clear and uncontested, Richard- son ruled, that Moore used the employer's vehicles for personal use. Based on previous verbal warnings, Richardson found a one-day suspension to be reason- able progressive discipline. Richardson allowed the griev- ance related to Moore's demo- tion, ruling the discipline lacked concrete evidence. He ordered references to the demotion be deleted from Moore's file and de- clared Moore was to be consid- ered to have held the position of working foreman during his sick leave from December of 2011 to September of 2012. The grievance related to al- leged discrimination was dis- missed. In his findings, Thomas used the word "discrimination" in his description of the employer's fail- ure to provide appropriate and progressive discipline before de- moting Moore. In his ruling, Richardson found this to be a poor choice of words. "It is unfortunate that Mr. Thomas… used the word dis- crimination. It is also unfortunate that he suggested that the grievor had been discriminated against because progressive discipline had not been employed," he said. "The employer did not disci- pline the grievor — or discrimi- nate against him — because he suffered from an anxiety disorder. The fact that the employer may have made the wrong decision — or failed to impose the kind of discipline Mr. Thomas thought appropriate — was not necessar- ily evidence of harassment or dis- crimination. At best it was simply an error of judgment on manage- ment's part." Reference: Cape Breton Regional Municipality and the Canadian Union of Public Employees, Local 759. Augustus Richardson — arbitrator. Demetri Kachafanas for the employer, Wanda Power for the union. May 29, 2014. < from pg. 1

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