Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2014 ArbitrAtion AwArds February 23, 2015 As a teacher with the district for 26 years, Worthy maintained a long, commendable employment record and consistently received positive performance apprais- als throughout his career. He had never been subjected to discipline. When Worthy was assigned to a Grade 7 class during the 2013- 14 academic year, a parent of a student made a complaint about Worthy, relating to interactions Worthy had with his son in the schoolyard. The complaint was forwarded to the Children's Aid Society and, after a lengthy investigation, the agency concluded, "there was not sufficient information to verify that the students that Mr. Worthy engages with are at risk of physical harm or emotional harm." Subsequent to the report, the school board conducted its own separate investigation and inter- viewed additional teachers and staff. Again, there was no evidence of misconduct that would war- rant disciplinary action. However, the school board de- cided to transfer Worthy to True- dell for the commencement of the 2014-15 school year, advising both the union and teacher that the move was not a disciplinary one. Despite this, Worthy and the federation filed a grievance, argu- ing that not only was the decision to transfer discriminatory, but it was done without just cause. In this case, the court of pub- lic opinion would have made the decision and any such transfer would have caused serious repu- tational harm. "Even if the school board did not intend to discipline the griev- or, the circumstances in which the transfer was imposed, in the wake of a Children's Aid Society investigation into a parent com- plaint, supported an inference of discipline by reason of the conse- quences to Worthy's reputation among his colleagues and in the parent community," the union argued. But the move (a lateral one) was done in Worthy's interest, the school board maintained. "It would give him an oppor- tunity to extract himself from the situation that had developed at the Welborne school and provide him with a fresh start at a new school," the board said during the hearing. "If he remained at the Wel- borne school, he would be sus- ceptible to other accusations and might be a target of parent com- plaints." In his ruling, Norm Jesin de- cided to issue his conclusion without commenting on whether the transfer, effectively, was disci- plinary. Instead, he looked at the collective agreement to deter- mine whether the board had the discretion to facilitate the trans- fer under the collective agree- ment. It did not. Because the students involved in the investigation had moved on to secondary schools, the board's rationale for transferring Worthy no longer applied, Jesin said. Therefore, he ordered the grievor be given the option and, at the end of the 2014-15 school year, to either return to Welborne or remain at Truedell. Reference: Limestone District School Board and the Elementary Teachers' Federation of Ontario, Limestone Local. Norm Jesin — arbitrator. Vince Panetta for the employer, Cynthia Petersen for the union. Aug. 22, 2014. employee's lack of remorse affects suspension the inteRnational Brotherhood of Boilermakers Lo- cal 128 filed a grievance alleging Procor imposed a five-day sus- pension of Brian Smith without just cause. On April 12, 2013, Smith was ordered to leave the company's Ontario-based facility after be- coming "boisterous and disrup- tive." Following an investigation, he was suspended for five days. Smith's supervisor, Ray Shan- non, said he approached Smith that day to question him about a work order. The work order said that work on a car — performed by Smith and a fellow employee — had been completed. However, the reflective strips and decals that are applied to indicate where the car had been re-qualified had not been attached. Shannon testified he handed the work order to Smith and asked him to apply the reflective strips and decals. But Smith stood up and began yelling in his face, swearing and demanding why Shannon hadn't asked the other employee working on the car to do the work, according to Shannon. The worker was reportedly inches away from Shannon dur- ing the interaction, and Shannon said he could feel spit flying onto his face. After backing away, the super- visor said he once again told Smith to complete the work, but Smith continued to yell. Shannon told Smith he was being disruptive and would need to leave the plant. Shannon claimed Smith re- fused to move, and so if Smith would not leave the facility, Shan- non would be forced to call 911. After Smith was escorted off company property, Shannon went home. He claimed he was so shak- en by the incident, he had to take his heart medication. While Smith's account of what was said during the interaction largely coincided with Shannon's, he denied ever swearing or raising his voice. Smith also denied acting in a manner that could be consid- ered threatening or intimidating. It was also made clear that everyone involved in, or who witnessed, the encounter was wearing ear protection and sur- rounded by employees carrying out loud work. Following an investigation, Smith was suspended for five days after the employer concluded he "did portray workplace violence, intimidation and boisterous be- haviour." The union grieved the sus- pension, claiming it cannot be definitively concluded Smith threatened or intimidated Shan- non. While some of the witnesses testified Smith did in fact yell, oth- ers said Smith spoke calmly with Shannon and seemed shocked when he was asked to leave. Procor, however, requested the grievance be denied, arguing it had just cause to discipline Smith. Smith could have complied with Shannon's request, the employer asserted, but instead decided to debate it. There was no evidence Smith had something else to do. On the contrary, the employer said, Smith simply wanted to challenge his su- pervisor and be uncooperative. The employer submitted the suspension was justified because the spittle that landed on Shan- non's face during the interac- tion constitutes physical con- tact. Shannon was afraid Smith's threatening behaviour would lead to a physical altercation, said Pro- cor. According to arbitrator Laura Trachuk, it cannot be disputed Smith was insubordinate. "He was directed to do a task and, rather than complying im- mediately, he challenged his supervisor," she said. "That in- subordination was just cause for discipline. Nevertheless, it would not, on its own, justify a five-day suspension." While Smith was disruptive and boisterous, he did not say any- thing threatening, Trachuk found, and yelling at someone is not nec- essarily enough to establish work- place violence. "As his behaviour did not amount to workplace violence, I might have reduced the suspen- sion if the grievor had shown any remorse," Trachuk said. "However, he did not. The grievor was at fault… yet the grievor never acknowledged that he did anything wrong. Further- more, he never apologized for even inadvertently causing dis- tress to Mr. Shannon." Because of Smith's lack of re- morse, Trachuk could not find that a lesser penalty would meet the employer's needs of correc- tive discipline. The grievance was, therefore, dismissed. Reference: Procor Limited and the International Brotherhood of Boilermakers Local 128. Laura Trachuk — arbitrator. David I. Wakely for the employer, Jesse Kugler for the union. Feb. 5, 2015. < from pg. 1

• Cover