Canadian Labour Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2014 July 28, 2014 ArbitrAtion AwArds which ended up taking longer than usual to complete. Once the audits uncovered the fact McDonald's practice was operating below-standard, the health authority put her on an unpaid leave of absence on the condition that she fulfill the required courses, training and education to get her practice up to code. However, the Canadian Union of Public Employees (CUPE), filed a grievance on her behalf, saying the employer was clearly taking disciplinary action — an unfair move, according to the union, as it alleged management could not prove the discipline was warranted. But the employer maintained its action in this regard was an exercise of management rights in order to uphold safe patient care. An audit of McDonald's prac- tice showed evidence of incom- plete prenatal physical assess- ment, normalization and/or failure to identify and plan for risk factors, as well as inconsis- tent documentation of informed discussions with clients and pa- tients. McDonald did not dispute this, but in fact was in the pro- cess of seeking out additional training and pursuing further education to get her practice up to standard. It was during this leave of absence the health authority switched her status from paid to unpaid. In making her decision, arbi- trator Kristin Gibson said the is- sue was whether management was justified in switching her leave — the union argued this was a form of unwarranted discipline, but management said it was done to protect the practice. In other words, it was neces- sary to determine "whether the employer has established the in- ability of McDonald to meet the requisite standard to the extent that she is incapable of perform- ing the job such that they are entitled to hold her out of the workplace without pay until her remedial training is complete," Gibson said. Because McDonald was con- sistently described as a caring and experienced midwife who inspired loyalty in her clients — and whom the health authority wished to retain as an employee — coupled with the fact that she was undertaking remedial train- ing and had applied to a Midwife- ry Bridging Education program, Gibson ruled in favour of the union. As such, she ordered the un- paid leave of absence be rescind- ed and McDonald be made fi- nancially whole for any lost time during that period. The requirement to seek out and successfully complete reme- dial training stands, and McDon- ald should be returned to work as soon as possible. "I do not wish to downplay the importance of safe delivery of health care nor dismiss the sig- nificant concerns raised by the audit," Gibson added. reference: Winnipeg Regional Health Authority and the Canadian Union of Public Employees (CUPE) Local 2348. Kris- tin Gibson — arbitrator. Karlee Blatz for the employer, Kathy Mcilroy for the union. April 10, 2014. City of Windsor discovers additional offences after firing employee tHe oFFenCes kept piling up for former City of Windsor em- ployee Brandon Denapoli. Denapoli was dismissed on Sept. 14, 2012, after his employer discovered he aided and abetted a non-employee to gain access to secured city property, failed to report stolen keys which could be used to open secure city property, and replaced those keys without permission. After firing Denapoli, the em- ployer discovered he had stolen and pawned city property. Main yard supervisor Tom Hansen testified the city received an anonymous tip on Jan. 4, 2013, that a city-owned weed-whip was advertised for sale by a pawn shop. Hansen attended the pawn shop and inspected the weed- whip, identifying it as a city- owned tool based on its se- rial number and markings. He reported the information to his supervisor and the Windsor po- lice department. The employer planned to rely upon this subsequent evidence during arbitration as Denapoli grieved his dismissal. Denapoli's union — the Canadian Union of Public Employees (CUPE) Local 82 — argued the employer had no right to do so. While the weed-whip incident came to the employer's attention in January 2013, the first time the union — or the grievor — was put on notice that the employer intended to rely on the allegation of theft at arbitration was on May 12, 2014. The union suggested the em- ployer decided in May 2014 to rely on the weed-whip incident only because it realized it could not establish just cause on the grounds it had originally relied on in discharging Denapoli. Counsel for the union asserted the employer should not be al- lowed to bolster its case by adding new allegations not relied upon at the time of discharge. The union argued the juris- diction of the arbitration is lim- ited to matters raised by the de- cision conveyed in the letter of discharge and the grievance filed in response to it, citing the Aero- cide principle. The Aerocide principle gen- erally states that an employer cannot justify disciplining an employee on grounds that are different from those it gave when the penalty was actually im- posed. The employer, however, ar- gued arbitrators often allow the addition of grounds that were "unknown and not easily discov- erable at the time it effected the discipline." After reviewing the case law, arbitrator Nimal Dissanayake concluded there is a well-estab- lished exception to the rule the employer must be held to the grounds it communicated at the time discipline was imposed. According to Dissanayake, two conditions must be met in order for the exception to apply. "First, the arbitrator must be satisfied that the additional grounds sought to be introduced at arbitration was not within the knowledge of the employer at the time it imposed the discipline be- ing grieved, and further that the employer could not have reason- ably discovered the additional grounds prior to its decision to discipline," Dissanayake said. "Second, the arbitrator must be satisfied that permitting the introduction of the additional grounds does not result in proce- dural unfairness." Dissanayake ruled it was clear the employer satisfied both con- ditions required in order for the exception to apply, ruling the em- ployer is permitted to rely on the alleged theft of the weed-whip as additional grounds for the dis- charge of Denapoli. reference: The Corporation of the City of Windsor and the Canadian Union of Public Employees (CUPE) Local 82. Nimal Dissanayake — arbitrator. Patrick Brode for the employer, James Renaud for the union. July 2, 2014. < from pg. 1

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