Canadian Labour Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2014 September 29, 2014 ArbitrAtion AwArds working on the surface. According to Darrin Kruger, an 18-year-old heavy-duty mechanic and the president of the United Steelworkers Local 7552 sector who also serves as a member of the "contracting out" committee, the union's concern was that there was a "lost opportunity" of work, overtime and apprenticeships for the bargaining unit. The incident, which occurred during a summer maintenance shutdown back in 2011, involved Kruger going to the job site to work on a part of a mining ma- chine. While the machine should not have been in production, he noticed ventilation was inad- equate and began to work on that before the machine. Because that task took up a significant amount of time, the welding repair on the machine part was not completed. The next morning, Kruger was told he need not return to fix it be- cause it had been completed by a contractor the evening prior. Though the employer did have the right to continue its long- standing practice of using out- side contractors on the job site, the provisions in the collective agreement are a right, like other management rights, that can be restricted or limited through bar- gaining. As such, Kruger went on to say, the contract stipulated the com- pany, wherever practicable, will have such work performed by a bargaining unit employee. If it is deemed appropriate to go ahead and contract out the work, the union should be informed. "(This) should be given broad interpretation rather than the narrow one urged by the employ- er," the union argued. "The infor- mation is to be provided prior to the contractors being engaged... Prior to the beginning of each month." The USW confines its claim to $1,600 in damages and addition- ally sought a declaration that the employer violated the collective agreement and should cease and desist any future violations of such nature. However, the company main- tained that there were limitations on its right to contract out work, it did not violate the contract when there was unplanned assignment of work. The contractor hired for the job, moreover, was one who had been hired before, and therefore the employer had already noti- fied the union of his name on the contractors list. The person who performed the work, as a result, was not a so-called additional contractor. In his decision, arbitrator Wil- liam Hood ruled in favour of the union, since the company failed to inform or discuss its decision in any form. "Upon receipt of this notifi- cation, the union may request a meeting to discuss the informa- tion provided as set forth in the collective agreement. Not only does the (provision) say this, the whole purpose of the meet- ing is to provide the union with an opportunity to convince the employer to use bargaining unit employees for the work instead of outside contractors," Hood ex- plained. "If the notification were postponed until after the work had been performed, the right to discuss and consult would be neutered if not rendered com- pletely meaningless." He ruled Agrium violated the collective agreement and awarded the USW $1,500 in damages. Reference: Agrium, Vanscoy Potash Operations and the United Steelworkers Local 7552. William Hood — arbitrator. Gordon D. Hamilton for the employer, Gary Bainbridge for the union. Aug. 28, 2014. Video surveillance leads to dismissal Tony doLcE claimed he was unfairly terminated after taking an injury-related absence. Dolce was dismissed on June 27, 2013, after an investigation by Ontario-based business Agropur found Dolce was dishonest about time off related to a knee injury. On May 30, 2013, Dolce present- ed the employer with a note from his doctor explaining the recent inflammation of an old knee injury prevented him from doing his usual work. The note requested Dolce be moved to light duties or be off work for a period of up to two weeks. Light duties were not accommo- dated, and so Dolce took time off. Because of Dolce's poor attendance record, the employer requested an investigative research group con- duct surveillance. Video evidence shows Dolce car- rying sheets of plywood, climbing stairs without the aid of a handrail and jumping down from the tail- gate of a pickup truck without any difficulty. The employer also reported Dolce walked with a pronounced limp when he visited the workplace during his absence but that the limp disappeared when he was off com- pany property. Dolce was asked to attend a meeting on June 27, 2013. When confronted with the information that the employer had conducted surveillance, Dolce denied he was active during his absence. He denied he was the person shown in the video surveillance and suggested the evidence might feature his son in a case of mistaken identity. He maintained that he was in constant pain and largely immo- bile. The meeting concluded with Dolce's dismissal. "You have been absent from work since May 31, 2013, and ad- vised the company that this ab- sence was related to knee prob- lems you were experiencing. You informed us that you were entirely incapable of working," his letter of termination read. "However, the company under- stands that you have been very ac- tive while away from work which is completely inconsistent and contradictory to your claim of total disability. Moreover, your absence from work is entirely culpable and fraudulent." The Milk, Break Drivers, Dairy Employees, Caterers and Allied Employees Union Local 647 filed a grievance on Dolce's behalf, sub- mitting there was no just cause to terminate him and requesting he be reinstated with full back pay. The union said Dolce's dismiss- al proceeded on the basis Dolce claimed he was totally disabled, ar- guing he made no such claim. Rath- er, Dolce submitted a note from his doctor requesting light duties for a short period of time. The union further argued the short periods of activity shown in the video surveil- lance was not remotely comparable to Dolce's job. The company argued Dolce's activities — as demonstrated in the video surveillance — indicate he had the functional ability to per- form the job. The employer also referenced Dolce's dishonesty dur- ing his meeting with management and his continued denial that he was the man pictured in the video evidence. According to arbitrator O.B. Shime, the employer placed too much weight on its video surveil- lance. "Surveillance evidence, as a gen- eral rule, should be weighed with caution. That type of evidence usually consists of brief snapshots or snippets of a person's activities," Shime said. "It is my view that the medical evidence which demon- strates an actual medical condi- tion… trumps the surveillance evi- dence." Because of Dolce's poor atten- dance, Shime said, the employer did not give due consideration to his doctor's note and failed to take reasonable measures to accommo- date him. And while Shime agreed Dolce was not a credible witness, his untruthful testimony cannot form the basis for denying him an appropriate remedy. Shime ordered Dolce be rein- stated to his position with full se- niority but without compensation. Shime also ordered a three month suspension for dishonesty coupled with a warning Dolce may be dis- charged for similar behaviour in the future. Reference: Agropur, Division Natrel and the Milk and Break Drivers, Dairy Employees, Caterers and Allied Employees Union Local 647, affiliated with the International Brotherhood of Teamsters. O.B. Shime — Arbitrator. John Mastoras for the employer, Micheil Russel for the union. Sept. 5, 2014. < from pg. 1

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