Canadian Labour Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2014 August 11, 2014 ArbitrAtion AwArds The teacher, alongside the British Columbia Teachers' Fed- eration (BCTF), filed a grievance against the British Columbia Pub- lic School Employers' Association after he was suspended without pay and subsequently fired fol- lowing allegations of sexual as- sault involving a student. The student alleged the inap- propriate relationship occurred between Grade 5 and Grade 8. However, the teacher claimed he only had four fleeting interac- tions with the student, who was not even his own student at any time. After the allegations, the teach- er was arrested. But the Crown failed to lay charges following its investigation. During the investigation, he was suspended without pay and subsequently dismissed — almost two years after the allegations sur- faced. The BCTF filed a grievance over the dismissal. he said, she said With such sensitive issues, often- times, allegations of sexual assault rely on he said, she said testimony. In this case, forensic evidence, police and guidance counsellor investigations, and confusing tes- timony from the student were all integral to McEwen's judgment. The student's diary turned out to be a key piece of evidence, and many of the situations she de- scribed happening with the teach- er also seemingly happened to be taken from the popular television show, Law & Order. Medical tests she underwent as a result of the police and RCMP investigation were refused by the family to be shared in court, but some of that evidence was subpoe- naed by the arbitrator, as she felt that was a key piece of evidence. The teacher also underwent numerous psychological tests, and it was determined he did not show any risk factors to offend in any way. According to the BCTF, the 14-year work history coupled with volunteer activities (such as extracurricular boys' and girls' sports teams, for which no com- plaints had ever been reported), as well as the unreliability of a clearly troubled student and medical evi- dence warranted reinstatement for the teacher. "The teacher's many years of discipline-free teaching — includ- ing history of voluntary endeavours such as coaching both girls' and boys' athletic teams — weigh heav- ily in his favour," the union said. teacher reinstated For all of the aforementioned rea- sons, the teacher was reinstated. "The psychological profile sub- mitted by the union is that of a decent, hard-working man with a solid network of friends and fami- ly — a far cry from the sadistic and monstrous torturer portrayed by the student," McEwen said. "Not only (had) the employer failed to meet its burden of proof, the evidence overwhelmingly demonstrates that the teacher is the victim of false allegations." As such, the teacher was or- dered reinstated and to be made whole for the loss of pay for the past two years. "The union requested that, given the teacher's dire financial circumstances as well as the many other adverse impacts on him consequent upon his dismissal almost two full school years ago, I render an interim award," McEwen said. "The grievance is upheld and the teacher is to be made whole at the earliest possible time." Moreover, she suggested the union would be in a position to make a claim against the employer for the teacher's loss of reputation. Reference: B.C. Public School Employers' Association and the B.C. Teachers' Federation. Joan I. McEwen — arbitrator. Judith Anderson for the employer, Randy Noonan for the union. July 10, 2014. Cook fails to provide care to cancer patients MaRlene sChaan, a cook at the Saskatchewan Cancer Agency's Saskatoon Lodge, was discharged following two inci- dents with Lodge guests in Sep- tember 2013. In both instances Schaan failed to provide meals to guests under- going cancer treatment. At the time of the incidents Schaan had a previous written warning and a five-day suspen- sion on her record. Both previous disciplines related to inappropri- ate interactions with Lodge staff. The employer claimed the latest incidents constituted culminating incidents, justifying her discharge. While Schaan's previous disci- pline related to misconduct to- wards fellow staff members, the employer argued her poor atti- tude was a common denominator in the incidents involving guests. On Sept.11, 2013, one of the Lodge's guests — referred to as Patient A — advised staff his med- ical appointment was scheduled to run in to the Lodge's lunch per- iod. Schaan was instructed by her manager to put aside plates for the patient to be reheated upon his re- turn. Schaan did not put aside food for Patient A. When he returned to the Lodge, Schaan told him lunch was no longer available but that he could help himself to a cooler filled with muffins, fruit, cheese and yogurt. On Sept. 12, 2013, Patient B was scheduled to have lunch at the Lodge but failed to show up. Schaan called his room to ask if he was coming to eat and he de- clined. Just as the lunch hour was winding down, however, Patient B arrived in the dining area, went to the cooler and helped himself to a few snacks. Schaan did not offer to prepare him anything. A meeting was held to discuss the two incidents, both of which were witnessed by staff members. When asked about the two incidents, Schaan offered no explanation for her failure to provide a hot meal to both Patient A and Patient B. After discussing her lack of explanation and apology, the em- ployer dismissed her. The Saskatchewan Govern- ment and General Employees' Union grieved Schaan's termina- tion, arguing the September inci- dents were insufficient reason for discharging an employee with 18 years' seniority and strong per- formance reviews. The union request Schaan be reinstated and compensated for lost wages and benefits. The union argued the em- ployer exaggerated the degree of Schaan's misconduct. If the incidents were as serious as the employer claimed, the other staff members present at the time would have intervened. Addition- ally, the union found the employer overlooked several important mitigating factors that favoured overturning the dismissal. The employer argued Schaan's primary job as cook was to pro- vide meals to patients, pointing out the vulnerability of the guests who were undergoing cancer treatment. The employer further argued Schaan's transgressions had to be measured against the high standard of conduct ex- pected of employees working in the health sector. While sole arbitrator Allen Ponak was satisfied that the evi- dence established Schaan's con- duct on Sept. 11 and Sept. 12 was inappropriate and justified disci- pline, he found discharge was too harsh a penalty. "I do not see the grievor's... failure to set aside the plates as serious misconduct," Ponak said. "Rather, it is her failure to do something about it that is the real transgression." Ponek found Schaan failed to provide both Patient A and Pa- tient B with the appropriate level of care. While the incidents pro- vided just cause for discipline, they did not justify dismissal. The grievance was partially sustained, seeing Schaan reinstat- ed to her position as cook with a six week suspension. Ponak also ruled Schaan be compensated for lost wages and benefits beginning six weeks from the date of her dismissal to the date of her reinstatement. Reference: Saskatchewan Cancer Agency and the Saskatchewan Government and General Employees' Union. Allen Ponak – arbitrator. Eileen Libby for the employer, Hannah Gasper for the union. June 23, 2014. < from pg. 1

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