Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2015 January 19, 2015 ArbitrAtion AwArds Canadian HR Reporter, a Thomson Reuters business 2015 employer's actions on the grounds that providing undergarments was an "environmental privilege" under the collective agreement and was a working condition that could not be unilaterally changed by the employer. The first grievance, pertaining to employees performing radio- logical work, was dismissed by arbitrator Larry Steinberg as On- tario Power Generation provided proper and timely notice it was eliminating the undergarment provision. The second grievance, on the other hand, was allowed because it failed to provide such notice. According to the union, since the 1970s, Ontario Power Gen- eration had supplied T-shirts, underpants, bras and socks for ra- diological employees working in the protected areas of its nuclear generating stations. This reduced the potential risk of taking undergarments con- taminated with radiation out of the plant and, further, the nature of the work required employees to shower and change clothing re- peatedly during a shift. Thus, "this environment privi- lege is longstanding and is for the purpose of health and safety, hy- giene, comfort and convenience," CUPE said. However, the company argued that improved technology — in- cluding screening for contamina- tion and improved practices and procedures — made the under- garments unnecessary. As such, in 2002, the company announced it would no longer provide clothing for radiological work. For this, Steinberg sided with the employer, saying the union could not have been concerned with health and safety as it did not file a grievance when the decision was first made back in 2002. Secondly, no scientific or tech- nical evidence was submitted from either party proving or dis- proving a hazard. Electrical workers, however, were another matter entirely as the collective agreement language was loose. While it was not an explicit requirement, cotton undergar- ments (which would not melt into the skin in the event of an arc flash or fire) were made available and used regularly by those workers. The grievance concerning electrical workers was filed in 2012, the same year the employer announced it would no longer provide undergarments, follow- ing a joint health and safety com- mittee's conclusion that it "would have a direct negative impact on worker safety, particularly those performing electrical work." This grievance was allowed. reference: Ontario Power Generation and the Power Workers' Union, affiliated with the Canadian Union of Public Em- ployees (CUPE) Local 1000. Larry Steinberg — arbitrator. Paulene Pasieka for the employer, John Monger and Jessica Lat- imer for the union. Jan. 6, 2015. Canada Post employee fired for theft A PoSTMASTer with the Can- ada Post Corporation referred to as Employee D was fired after ad- mittedly stealing some $500 from her employer. While the employee did not deny she misappropriated the funds, her union — the Canadian Postmasters and Assistants As- sociation — argued there were mitigating circumstances that jus- tified her reinstatement. The employee began work- ing as a postmaster in a small town outside of Sudbury, Ont., in August 2008. In August 2010, management visited the site to investigate the employee's recent absences as well as reports of missing money. When a super- visor visited the office it was dis- covered $66 was missing from the office safe and a further $130 was missing from the till. When confronted about the money, Employee D admitted she had taken it. She was suspended while the employer investigated the incident. According to Employee D, she had needed the money to pur- chase necessities — including diapers for her children — and planned to repay the money as soon as her next paycheque ar- rived. She told management her partner was physically, mentally, emotionally and financially abu- sive. While she was the bread- winner of the family, she ex- plained, her boyfriend controlled her income. Additionally, the employee admitted she and her partner struggled with addiction. With no access to her income and strug- gling with drugs, the employee explained, she had been forced to take money from Canada Post in order to make ends meet. The union argued for Employee D's reinstatement, saying that af- ter ending her relationship with both her partner and drugs, there was no one and nothing in her life that would cause her to repeat her past mistakes. The union further argued Employee D was honest with the employer when con- fronted with the missing money and was genuinely sorry for what she had done. The union emphasized Em- ployee D did not seek compensa- tion for wages or benefits lost and she would accept any conditions imposed on her return to work, including drug testing. Counsel for the employer, how- ever, said it was clear Employee D knew what she was doing was wrong, despite her alleged drug use. With respect to her difficult personal circumstances, the em- ployer argued they were not suf- ficient mitigating circumstances to justify the reinstatement of an admitted thief. The postmaster is generally viewed as a pillar of the commu- nity, the employer argued, and must be trustworthy as employ- ees in the position work with little to no supervision when handling Canada Post's funds. Furthermore, the employer asked arbitrator Michel Picher to consider Employee D's lim- ited service. She had worked for the employer for only a few short years, including 19 months of ma- ternity leave. "I have no doubt about the trag- ic and difficult circumstances of the grievor's personal life," Picher said. "The difficulty I have with the fundamental position asserted by the association is to accept that her conscious and repeated acts of theft can be understood or ex- cused on the basis of her admit- ted personal stresses and ongoing drug use." Picher ruled it would be unfair to the employer and would un- dermine the deterrent effect of her discipline should Employee D be reinstated. The grievance was therefore dismissed. reference: Canada Post Corporation and the Canadian Postmasters and Assistants Association. Michel G. Picher — arbitrator. Debra Kyle for the employer, Sean McGee for the union. Dec. 18, 2014. < from pg. 1 employer's decision to stop providing undergarments had a "direct negative impact on worker safety." "The postmaster is generally viewed as a pillar of the community... and must be trustworthy."

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