Canadian Labour Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2015 January 12, 2015 he left his work station and went to the cafeteria, 16 minutes before the designated break time. Smith, who had been work- ing for the employer for nearly a decade, testified he did not know what time it was when he left his work station but admitted he knew it wasn't the designated break time. Smith also conceded that he knew that he was not authorized to leave his work station at that time. Smith testified that he walked the short distance from his work station to the cafeteria. Shortly after entering the cafeteria, Smith saw his supervisor approaching. The welder turned to leave, in an effort to "avoid hassles" with the supervisor. As Smith was leaving the caf- eteria, the supervisor met him at the door. The supervisor took down Smith's name, asked him his purpose for being in the cafeteria and left. Ultimately, Smith said, he was in the cafeteria for only a few min- utes. On April 25, Smith was issued a one-day suspension. Smith's union — the United Steelworkers (USW) Local 9393 — filed a griev- ance on his behalf, arguing the suspension was excessive. The union acknowledged there was just cause for some discipline, but argued mitigating factors should be taken into consider- ation. Smith was a reasonably senior employee, the union argued, with no discipline on his record either before or after the discipline in question. According to the employer, however, early breaks and show- ers had been a consistent problem at the plant since the introduction of designated break times in 2011. For a time, the employer issued written warnings when employ- ees took unauthorized breaks but ultimately it found the warnings had no effect. Eventually, the employer began issuing one-day suspensions. Considering the ongoing na- ture of the problem, the employer argued its consistent approach to the abuse of break time was rea- sonable. While the specific circum- stances of each case matter and there may be instances where a one-day suspension is unrea- sonable, arbitrator Jesse Nyman found Kubota was justified in its discipline in Smith's case. "Smith's evidence and actions demonstrate that he was well aware that he was not supposed to be in the cafeteria, yet he decided to leave his work station and go there anyway," Nyman said. "First, he agreed under oath that he knew it was not break time. Second, he knew he was not supposed to be away from his work station without authoriza- tion. "Third, when he saw his super- visor, he tried to leave the cafete- ria because he wanted to avoid a hassle… the only way to interpret these facts is that Mr. Smith knew what he was doing was wrong and knew that it would lead to disci- pline." Because Smith knew what he did was wrong and simply chose to run the risk that he would not be caught, Nyman dismissed the grievance. reference: Kubota Materials Canada Corporation and the United Steelworkers (USW) Local 9393. Jesse M. Nyman — arbitrator. David. L.W. Francis for the employer, Sean Logan for the union. Dec. 6 2014. no recourse for discredited b.C. police officer PoLiCinG the PoLiCe can be a juggling act, something cops in Saanich, B.C., learned after an officer was found to have abused his authority for what he believed to be a good cause. Constable David Smit was found guilty by his chief of abusing authority and deceit. Smit was then suspended with- out pay for seven days and re- duced in rank to third-class con- stable. The constable appealed the decision, and while the court dis- missed the abuse charge, it upheld the deceit charge. For this case, Smit filed a griev- ance through the Saanich Police Association seeking indemnifi- cation for the legal fees incurred during the appeal process. According to the employer, the Saanich Police Board, the judge in the appeal did not reject the chief 's decision and decide that no discipline was warranted. Instead, he upheld the allega- tion that the grievor had engaged in an abuse of authority for which discipline was warranted. As such, no indemnification was re- quired. On the other hand, the police association felt that interpretation was unreasonable. Because one charge stood and the other did not, applying a fair and reasonable interpretation to the language in the collective agreement meant Smit was en- titled to indemnification for the fees incurred during the appeal proceeding. The collective agreement dic- tates an employee will be entitled to indemnification for "necessary and reasonable legal costs." However, the employee will not be eligible for punitive damages, grievances arising from the col- lective agreement or charges un- der the Police Act. The case is a historic one as there was no bargaining history evidence concerning the inclu- sion of the collection agreement. A divided success in the ap- peals case — that is, throwing out the charge of abuse but upholding the charge of deceit — has never before been encountered, noted arbitrator John Kinzie. "The issue comes down to what the parties intended when they agreed upon the words establish- ing that condition (in the collec- tive agreement)," Kinzie said. "In these circumstances, if it was their intention to provide for proportional indemnity, I would have expected them to have said so in express terms." And because it was not express- ly outlined in the collective agree- ment, nor did the appeal deem the discipline to be unnecessary, Kinzie dismissed the grievance. reference: Saanich Police Board and the Saanich Police Association. John Kinzie – arbitrator. Marcia McNeil for the em- ployer, David Blair for the union. Sept. 29, 2014. ArbitrAtion AwArds "the only way to interpret these facts is that mr. smith knew what he was doing was wrong and knew that it would lead to discipline." "the court dismissed the abuse charge but upheld the deceit charge."

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