Canadian Labour Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2014 September 1, 2014 ArbitrAtion AwArds to Gervasio's direct supervisor, Ken McDonald on Feb. 23, 2011, and confessed what Gervasio called her "true feelings." She testified she and McDonald had been working closely together and she had devel- oped romantic feelings for him. "I am not telling you this because I want you to beg me to stay or even that I want you to confess how you feel about me," the letter read. "I'm simply telling you this because there is nothing for me to lose by me telling you how much I care about you." McDonald testified he was shocked and "deeply disturbed" by the letter. He said he had never had any relationship with the grievor beyond the normal interaction in his role as her supervisor. He took the letter to his manager and the human resources depart- ment and was advised to meet with Gervasio and explain that he had no interest in any relationship out- side of work. He was also advised to set specific boundaries to guide all future contact with her. Gervasio and McDonald held a meeting on Feb. 24, 2011. Their accounts of the conversation differ greatly. McDonald accused Gervasio of attempting to force him into a re- lationship while Gervasio claimed McDonald was confused about his personal feelings for her. A series of emails from Gervasio to McDonald followed the meet- ing. McDonald said several em- ployees approached him regarding rumours of a relationship between himself and Gervasio. On March 11, 2011, McDonald told her he no longer wished to re- ceive any emails. On March 14, Gervasio con- tacted management to request alternative employment. When asked about her decision to leave her current position, Gervasio ref- erenced her personal relationship with McDonald, referring to them as "an item." In subsequent communication with management regarding a new position, Gervasio denied the re- lationship and was reportedly "de- rogatory and insulting" in her refer- ences to McDonald. Management met with Gerva- sio on March 28 to investigate her claims. She was told she would not be allowed to return to work for a three-week period and was told she could not discuss the investigation with anyone. Following the meeting, Gerva- sio went back to her work area and revealed the nature of the investi- gation to several co-workers, call- ing McDonald a "backstabber," and saying he was "a liar and cannot be trusted." Gervasio was terminated ef- fective April 1, 2011. Gervasio's union, the Health Sciences As- sociation of British Columbia, grieved the dismissal, arguing the employer had no just cause for termination as no disciplinable offence occurred. The union re- quested Gervasio be reinstated and made whole for lost wages and benefits, as well as general dam- ages. The employer, however, asserted the trust and confidence necessary for the employment relationship had been irreparably damaged. According to the employer, re- instatement should not be consid- ered as discharge was warranted in the circumstances. Arbitrator John P. Sanderson agreed, calling the workplace chaos that engulfed Gervasio "entirely predictable." "She is a mature woman who should have known that such a per- sonal letter, delivered at work to her supervisor, would be a workplace time bomb from the start," Sander- son said. "Having delivered the initial let- ter and heard his reaction, she per- sisted in her actions at work, try- ing to advance what seems to have been a private obsession." Sanderson found Gervasio's in- subordination and insolent behav- iour towards management to be a serious offense, ruling the employ- er had just and reasonable cause to take disciplinary action. The grievance was dismissed. Reference: Fraser Health Authority and the Health Sciences Association of British Columbia. John P. Sanderson — Arbi- trator. Erin Cutler for the employer, Tonie Beharrell for the union. July 10, 2014. Are we or aren't we in an employment relationship? SeAn HonoWAy, a casual staff- er at a small Saskatchewan-based ambulance service, was terminated after leaving for training offered by his employer. The issue was not exactly a case of wrongful termination, but rather one of employment relationship status between Honoway and Northeast EMS, which operates under Medstar Ventures in Carrot River and Nipawin, Sask., accord- ing to arbitrator William Hood — who upheld the grievance. Honoway was hired on as a primary care paramedic in 2005, and in 2009 was offered training to progress to a fully-licensed ad- vanced care paramedic through the company. That would mean Hono- way would undergo training at the Saskatchewan College of Paramed- ics, to wrap up in the 2010-2011 academic year. Honoway accepted the offer, and his last day of employ- ment was in August of 2009. However, in 2010, Honoway received another email outlining another offer of employment for the same full-time position. He was confused, as he had already accepted the 2009 offer, and so ignored the second communi- qué. Then, in 2010, the Health Sci- ences Association of Saskatchewan (HSAS) won a certification petition at the Saskatchewan Labour Rela- tions Board. That meant that the union won the right to the represent the ma- jority of workers at Medstar. A statement of employment from Medstar addressed Honoway's po- sition as a part-time worker. Medstar eventually terminated Honoway, citing his lack of interest for the full-time position and that he had completed his training with- out any follow-up. Another employee was hired to fill the full-time position. According to his union, Hono- way was fired without just cause. As well, it filed an unfair labour practice complaint at the pro- vincial labour relations board. Withdrawal of the employment offer and reissuing dates are ir- relevant, HSAS argued, and the sole important date was the date of termination. The employer, on the other hand, argues the employment relationship with Honoway was only casual and, based on the back and forth, the relationship was one Honoway had lost interest in. In the alternative, Medstar went on to say, if there had been a full- time employment relationship with the employee, then that relation- ship had been terminated prior to the labour board's certification order. Just cause, in the employer's view, was not the issue. Hood disagreed. An employment relationship indeed existed, he concluded, as Honoway's acceptance of the 2009 offer is an enforceable employment contract – the conditions of which relied upon the employee's return to school and complete training in late 2010, early 2011. "The employee performed his obligations and it was the employ- er that reneged on its obligations pursuant to the contract," Hood explained, adding that there was no evidence to justify filling the full-time position with another em- ployee. "There was no 'shortage of work' simply because the employer hired another employee to fill the posi- tion offered in 2010. The only rea- son another employee was hired to fill the position is because the em- ployer failed to honour its contrac- tual obligations to the employee in the first place," he said. As such, Honoway was ordered reinstated to the position of ad- vanced care paramedic and made whole for any loss of pay, benefits and seniority resulting from the termination. Reference: Medstar Ventures, Northeast Emergency Medical Services and the Health Sciences Association of Saskatch- ewan. William Hood — arbitrator. Gordon Hamilton for the employer, Marcus Davies for the union. Aug. 13, 2014.. < from pg. 1

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