Canadian Labour Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2014 December 1, 2014 ArbitrAtion AwArds working on the employer's as- sembly line, operating a transfer car. The line was filling up and there was a risk machines would have to be stopped — and time lost — if the line was not cleared. At the same time, Yan Zhu was working as an electrician. An- other transfer car, not Gatto's, had broken down. In order to re- pair it, Zhu needed to consult the car's manual. The manual for the broken- down transfer car was missing from its control panel, as was the manual for the only other sta- tionary transfer car. Zhu decided to get the manual from Gatto's transfer car in order to complete the repairs. When Zhu approached Gatto and requested access to the con- trol panel of her transfer car, Gatto assumed he intended to perform maintenance or repairs on the vehicle which would only add to the assembly line delays. Gatto told him to ask a supervisor whether or not she should stop the transfer car to allow him ac- cess. Shortly after Zhu left in search of the supervisor, the supervisor checked in with Gatto. She ex- plained the situation and asked if she should stop the transfer car and allow Zhu access to its con- trol panel. Upon seeing the assembly line was backing up — and not know- ing Zhu's request would report- edly take less than a minute — the supervisor advised Gatto to continue working. Unable to find the supervisor, Zhu returned to where Gatto was working. Finding her unwilling to stop the vehicle, Zhu decided to take matters into his own hands. Zhu jumped onto the car, right behind Gatto. Gatto testified that Zhu's ap- pearing very suddenly beside her with a screwdriver in his hand caused her to panic. In an effort to prevent him from shutting down the transfer car, Gatto grabbed Zhu by the shirt and shook him roughly. She screamed loudly and also squeezed his upper arm. When Zhu grabbed his walk- ie-talkie to summon the super- visor, Gatto took it from him and wrapped its cord around his neck. Gatto then proceeded to hit Zhu with the walkie-talkie. Zhu managed to untangle himself from the cord and get out of the transfer car. He suffered scratches and bruising in the al- tercation. Statements were taken from Gatto, Zhu and witnesses. Gatto was sent home and terminated upon her return to work the next day. Union files grievance Unifor Local 1646 filed a griev- ance on Gatto's behalf, arguing termination was excessive consid- ering the circumstances. The employer, however, ar- gued the termination must be upheld for employee safety. While arbitrator Christopher Albertyn found there was con- tributory responsibility for what occurred, the most serious mis- conduct was on Gatto's part. And though her actions con- stituted a serious assault on a fel- low employee, Albertyn found the attack was not premeditated but rather a sudden reaction to Zhu's invasion of her workspace. "She over-reacted, she re- sponded unnecessarily aggres- sively, but she did so without forethought and without any intent to harm Zhu," he said. "If reinstated in her employment, there is no reasonable risk of her being a threat of harm to any fel- low employee." Those mitigating reasons led Albertyn to find the employer was without just cause in its ter- mination of Gatto. He ordered she be reinstated without loss of seniority, with a three-month suspension on her disciplinary record, and without compensation. Reference: Kruger Inc. and Unifor Local 1646. Christopher Albertyn — arbitrator. Michael Torrance for the employer and Joe Herbert for the union. Nov. 6, 2014. edmonton cop hits roadblock in ranks aN oFFiCeR in the Edmonton police service felt his career had been unfairly thwarted because of past charges that were subse- quently dropped — and an arbi- trator has agreed. The Edmonton Police Asso- ciation filed a grievance against the City of Edmonton and its police service after the officer (whose name was not provided) felt his career had been unfairly prejudiced after sex trade work- ers had made serious allegations about the conduct of another emergency services officer. Lat- er, charges were brought against the grievor under the Police Act's disciplinary process, but the complainants failed to show up to testify and, as a result, the charges were withdrawn. According to Edmonton's po- lice service, regardless of wheth- er the allegations were factual, the officer was transferred from his position to another one in which he would be less likely to give evidence — and thus, less open to challenges concerning his credibility. "There is a risk that the ex- ploration of the officer's role or credibility will deflect the trial away from its central purpose to- wards such collateral issues," the employer explained. The police officer, alongside his union, disagreed. By being transferred to an- other position, the officer felt his career was being "nobbled" and that there was no basis for the move as he was not found guilty of any charges. Further, the union pointed to the grievor's performance evaluations that were very positive and reflected an officer who clearly wishes to advance through the ranks. Municipal police officers in Alberta are governed by a num- ber of collective agreements ne- gotiated under the provisions of the Police Officers Collective Bargaining Act, the Police Act, and the Police Service Regula- tion. Under those documents exists a process by which po- lice officers who are charged with misconduct must follow through, separate from any such criminal proceedings. As such, the collective agree- ment permitted the police ser- vice to do its due diligence in determining whether the officer would pose a so-called "testimo- nial risk." But after sifting through the evidence, arbitrator Andrew Sims determined the police ser- vice never effectively assessed the degree of risk to the full ex- tent. "While I find (that) the service had the contractual ability to protect against risk, it did so in a way that violated the grievor's collective agreement rights pro- cedurally," Sims said in his deci- sion. "I find that he should have been told, from the outset, of the positions from which he was restricted and any conditions thought necessary to mitigate any risk. It was unreasonable in the circumstances to leave him guessing as to just when he might be accepted." Because both parties are in- volved in internal processes to address a remedy outside of arbi- tration, Sims' decision will help influence that outcome. Reference: City of Edmonton, Edmonton Police Service and the Edmonton Police Association. Andrew Sims — arbitrator. Roger Hofer for the employer, Dan Scott for the union. Nov. 11, 2014. < from pg. 1 "She responded unnecessarily aggressively, but she did so without forethought."

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