Canadian Labour Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2014 July 21, 2014 ArbitrAtion AwArds light had been on when he gave the instruction to the engineer, and at some point thereafter must have been switched off, the em- ployer said the light log indicated the signal had been off the entire time. As such, Denny was fired. He, alongside his union, the United Steelworkers (USW), grieved the termination. As a train conductor, Denny was responsible for a crew and the safe transportation of substances — in this case, the transfer of slag from the smelter. Essentially, a conductor acts as the eyes of the engineer. Denny maintained the green light was on for the entire time he went to inspect the area. He looked for people, and deter- mined no one was there. Typical- ly, Denny would look to see if the green light was still on at another interior overhead mounted light, but he did not recall doing so that day. He gave the go-ahead, and the cable became pinched under the wheels of the car puller. After the incident, manage- ment went to the light logs to confirm Denny's story. The signal light was functioning normally that day, and there was no evi- dence to indicate otherwise. As the employer saw it, Den- ny's actions were reckless and in- excusable. "(He) had violated proce- dures in that he had authorized the movement of the train on to the skimming track without the green light and had failed to look to see that the car puller chain had been disconnected," management said. "Someone could have been killed very easily. The $500,000 production piece carried a bit of weight — but nowhere near the possibility of people getting killed." After reviewing the evidence — namely, the log records for the signals — arbitrator James Hayes dismissed the grievance, saying Denny's actions warranted termi- nation. He also pointed to Vale's past health and safety issues and, in particular, the record $1 million fine the mine was slapped with in 2013 for a worker's death. "(USW) Local 6500 and Vale have had far too much experi- ence with serious workplace injuries. Mining is a dangerous occupation wherever it is con- ducted and mine safety is of criti- cal importance, obviously," Hayes explained. "Any robust safety regime therefore must include serious consequences in cases of serious breach, consequences that include the possibility of discharge. An effective safety re- gime cannot be sustained without more than education and good intentions." The very real possibility and potential of catastrophic conse- quences, therefore, warranted termination. reference: Vale Canada and the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (USW) Local 6500. James Hayes — arbitrator. Timothy P. Liznick for the employer, Wess Dowsett for the employee. July 14, 2014. retaliation leads to termination r.V. WAS tErminAtEd by Unimin Canada after he retali- ated against co-workers following his suspension. The Havelock, Ont.-based em- ployer fired R.V. on Nov. 5, 2013, after it became clear he was acting in an intimidating and retaliatory manner towards co-workers fol- lowing his return from a 10-day suspension for violating the em- ployer's harassment prevention policy. R.V. was suspended for 15 days — later reduced to 10 days — for breaches of the company's "Harassment Prevention Policy — Sexual and Other Forms of Harassment." The main target of harassment was Stephanie Searle, the only full-time female em- ployee at the facility. R.V. dispar- aged her size, eating habits and sexuality on numerous occasions throughout 2013. Formerly very happy in her po- sition, Searle began to dread go- ing to work. A complaint was filed on or about Aug. 1, 2013. Several of Searle's co-workers supported her in her complaint, testifying to the employer that in addition to attacking Searle personally, R.V. consistently made graphic sexual remarks about women that went well beyond the conventions of locker room talk. R.V. denied the allegations and grieved the suspension. The 15-day suspension was reduced to 10 days on the under- standing R.V. would write a letter of apology to the employer and complainants, and the griev- ance against the suspension was dropped. The apology letter, however, was not to the satisfaction of the employer. The employer said the letter failed to express remorse, say that he was sorry or take re- sponsibility for his misconduct. The letter was not forwarded to the complainants for fear it would aggravate matters. The employer chose not to further pursue the matter on the theory that the authenticity of an apology is not something that can be mandated. After returning to work fol- lowing his suspension, R.V. was advised that any direct or indirect retaliation toward the complain- ants would be subject to imme- diate termination. The employer became aware of that exact be- haviour on or about Oct. 20, 2013. Searle testified R.V. made her very uncomfortable upon his return. He refused to speak to her but would look at her in the lunch room, then look away, and whisper something to his table mate. She also heard from numerous colleagues that R.V. was saying words to the effect of "once the dust settles, I'm going after her." Searle said she was particularly concerned her car would be tam- pered with. One of the co-workers who supported Searle in her com- plaint against R.V. confirmed R.V. said he planned to retaliate against her. The co-worker also testified he heard R.V. talking in the lunchroom about making a list of the workers who had testi- fied against him. The union called this testimo- ny hearsay, calling on arbitrator Dana Randall to give no weight to the claims. Randall found Searle and her colleague to be entirely credible, while R.V.'s denials were found to be unreliable. "I am willing to rely on the hearsay evidence," Randall ruled. "In my view, there is, based on the direct evidence alone, but bolstered by the hearsay evi- dence, a host of grounds to sup- port the employer's decision to terminate the grievor's employ- ment. He refused to accept that his conduct, which gave rise to his suspension, was deserving of correction. He continued to go on the offensive." Randall found few mitigating circumstances in the case, ruling R.V. was a short-term employee who had shown no remorse and taken no responsibility for his ac- tions. The grievance was dis- missed. reference: Unimin Canada Ltd. and United Steelworkers Local 5383. Dana Randall — arbitrator. Douglas Gilbert for the employer, Kevon Stewart for the union. July 1, 2014. < from pg. 1

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