Canadian Employment Law Today

Canadian Employment Law Today | 7 more Cases Canadian HR Reporter, a Thomson Reuters business 2014 ineligible benefit claim not fraud, just a mistake: Arbitrator An onTArio company did not have just cause to discipline a worker it suspended for using benefits coverage for his spouse, an arbitrator has ruled. e worker was a dye-setter for Tenneco Canada, a manufacturer of exhaust sys- tems for the automotive emissions control industry based in Cambridge, Ont. As part of the collective agreement between Ten- neco and the union, employees and their families were entitled to a vision care plan that covered prescription glasses and laser surgery. Employees were also entitled to coverage for prescription safety glasses, but this benefit was employees-only and not for their families. In late 2013, the worker was on medi- cal leave recovering from surgery when his wife asked if she could make a claim on his vision care plan for prescription safety glasses. e worker called the human re- sources department to verify if this was al- lowed, but he was unable to reach anyone. He contacted the union and asked about getting the form for prescription safety glasses, but he failed to mention they were for his wife. e worker's wife picked up the form at the union office and noticed it had the worker's name typed into the appropriate field. She crossed it out, entered her own name and proceeded to purchase the safety glasses. Soon after, Tenneco received an in- voice for $77.50 for the prescription safety glasses with the worker's wife's name on it. e human resources department noticed the invoice wasn't for an employee and contacted the optometrist who processed the order. e optometrist confirmed the glasses were not for an employee but were for the worker's wife. Tenneco met with the worker, who de- nied making any changes to the claim form and hadn't actually seen it. He acknowl- edged his wife had submitted the claim and offered to reimburse the company for the expense. However, Tenneco suspended the worker for three days without pay for "at- tempting to defraud the company of a safe- ty glass benefit that is for employees only." e union grieved the suspension and the worker claimed he didn't know his wife altered the claim form or that she wasn't covered for prescription safety glasses. He admitted he didn't fully understand the benefit entitlement but testified he would never jeopardize his job or his record for a small amount such as the value of the safety glasses. Tenneco said it was the worker's respon- sibility to know his benefit plan and should have inquired about his wife's eligibility be- fore letting her make the claim. e com- pany argued it should have been obvious it wouldn't pay for safety glasses that would be used at another workplace. e arbitrator believed the worker's claim that he didn't actually see the form and wasn't aware his wife had changed the name ough he was aware his wife was making a claim for glasses for herself, his apology and offer to reimburse the com- pany mitigated any misconduct, said the arbitrator. "If the (worker) took steps to cover up his actions or subvert the watchful eye of the employer, my view of (his) behaviour might be different," said the arbitrator. "ere was no attempt to hide who the prescription safety glasses were for." e arbitrator found the worker's expla- nation that he thought his wife was eligible for the benefit and he didn't think to inquire about it was acceptable and the lack of cov- erage for family members for safety glasses wasn't as obvious to him as it was for the company. Once he learned of his mistake, the worker in good faith offered to pay back Tenneco the cost of the safety glasses. e incident may have been the result of poor judgment, but not cause for discipline, said the arbitrator. Tenneco was ordered to rescind the sus- pension and compensate the worker for lost time. See Tenneco Canada and USW, Local 2894 (Teska), Re, 2014 CarswellOnt 15539 (Ont. Arb.). car, into the five-foot by three-feet opera- tor's space. He brushed against Gatto and startled her, particularly since he had a screwdriver in his hand. Gatto spun around, grabbed Zhu's shirt and shook him roughly. She also squeezed his arm and screamed at him to get out. Zhu put up his arms to protect himself and Gatto swatted his arm aside, yelling and swearing at him. She grabbed Zhu's walkie-talkie with the intention of calling the supervisor, but in the process stretched its cord and wrapped it around his neck. By trying to use the walkie-talkie, Gatto ended up throttling Zhu with the cord. Zhu was able to unwrap the cord from his neck and before getting out of the car. e company collected statements from Zhu and witnesses and interviewed Gatto, who said she was acting in self-defence and would do it again in the same circumstanc- es. She was sent home for the rest of the day. Zhu was not reprimanded. e next day, Kruger terminated Gatto's employment for acting "in a violent be- haviour and causing harm" to a co-worker. Because Gatto had received training in the company's workplace violence and health and safety policies, the company felt she should have known her conduct was unac- ceptable and it took its obligation to main- tain a workplace free of violence seriously. Following her termination, Gallo apolo- gized to Zhu. She also apologized at her grievance hearing, saying she had panicked and didn't intend to hurt Zhu. She retracted the statement she made in her interview, saying she wouldn't act the same way again. e arbitrator found Gatto "consider- ably over-reacted to the situation," but she shouldn't bear full responsibility for what happened. Both Gallo and Zhu felt under the gun in their work, leading them to act without consideration for the other. Zhu bore responsibility for acting rashly, and a strong reaction from Gatto should have been expected, said the arbitrator. e arbitrator also found the supervisor should have taken more interest and tried to resolve the situation, rather than going along with Gatto's preferred outcome. Had either Gatto or the supervisor found out what Zhu really needed, the incident could have been avoided. However, the arbitrator found Gatto's conduct was over the top and was the most serious infraction of anyone. "(Gatto) had no right to assault Mr. Zhu, alarmed though she was by his sudden ap- pearance beside her," said the arbitrator. "Her conduct was a serious assault on a fel- low employee for which (she) ought to have been severely disciplined." ough Gatto's misconduct was serious, the arbitrator found she was honest and remorseful about it and it wasn't premedi- tated. e arbitrator found it was "a single, sudden, surprising moment when she was physically confronted in her confined work- space." Gatto didn't have any prior incidents of violence or aggression and her remorse afterwards made it unlikely it would happen again, said the arbitrator. Kruger was ordered to reinstate Gatto with a three-month suspension. Because Kruger's apology came after her termina- tion, this information wasn't available at the time of termination, so Kruger wasn't required to compensate Gatto for lost pay beyond the three-month suspension. See Kruger Inc. and Unifor, Local 1646 (Gatto), Re, 2014 CarswellOnt 15713 (Ont. Arb.). Misconduct not premeditated « from workplaCE assault on page 1

• Cover