Canadian Labour Reporter

April 13, 2015 Canadian HR Reporter, a Thomson Reuters business 2015 could fulfill the position's duties and responsibilities. However, on the second day Parris was assigned to work, he called in sick, saying his right knee had swollen to the point where his leg brace would no lon- ger fit. This was not the last time Parris would refuse work citing medical reasons, but he provided no proof from a doctor. Thus he was informed that, should he re- fuse to work again in the future, he would be subject to disciplin- ary action up to and including discharge. The issue came to a head in May 2013 when the city's manag- ers decided to assign light equip- ment operators to poster removal duty as it had rained heavily the night before (it is common prac- tice to reassign such staffers to poster removal after a rainfall as it makes the task easier). Parris informed his supervi- sor he could not perform the work, and immediately went to his union steward, under the To- ronto Civic Employees Union, otherwise known as the Cana- dian Union of Public Employees (CUPE) Local 416. Parris said he did not un- derstand why the city could not accommodate him but the employer determined he was refusing work. He was then sus- pended. The situation escalated quick- ly, and was caught on tape. In video evidence, Parris was seen, visibly upset, swearing at his su- periors and allegedly saying he would be back to shoot his direct manager. Parris said he said "show you" as opposed to "shoot you" but the arbitrator disagreed. As the employer saw it, there was no other option than to ter- minate the employee, as it had already issued a one-day suspen- sion in May for the earlier insub- ordination and work refusal. "That had been followed by Parris' aggressive and defiant behaviour in the workplace in using abusive language and ges- tures to supervisors, and with the threats of violence that had been made to management," the city argued. Further, he was a probationary employee, and the employer had the exclusive right to discharge him. The union, on the flip side, grieved the initial suspension pending investigation. Accord- ing to CUPE 416, the grievor was simply engaged in "shop talk" and that he was just "blowing off steam." However, in her decision, ar- bitrator Gail Misra sided with the employer and said it is not ac- ceptable to express one's frustra- tion at work by being abusive and threatening. At the crux of this case is that the employee did not take re- sponsibility or apologize for his actions, she explained. "This is a case in which the grievor behaved in an unaccept- able and threatening manner, and that was the reason for which his employment was terminated. "Since the grievor was well aware that he was still a proba- tionary employee, he ought to have known that being abusive and threatening to management would not be conducive to con- tinuing employment with the city," Misra said, adding that Par- ris's discipline had nothing to do with his disability. Therefore, the city was found to have acted in good faith and a non-discriminatory manner, and the grievance was dismissed. Reference: City of Toronto and the Toronto Civic Employees Union, Canadian Union of Public Employees (CUPE) Local 416. Gail Misra — arbitrator. Kerri Kitchura for the employer, Mike McCreary for the union. March 24, 2015. Employee's assumption leads to demand for punitive damages PETER KUZYK, represented by his union the Ontario Public Service Employees Union (OP- SEU) Local 732, filed a grievance against Cofederation College demanding payment of punitive damages. According to Kuzyk, the em- ployer failed to provide a stan- dard workload form (SWF) more than six weeks prior to the commencement of a teaching assignment as required by the collective agreement. In addition to punitive dam- ages Kuzyk further demanded a penalty for the union for the em- ployer's failure in this aspect. The employer, however, as- serted it never made the assign- ment in question and therefore no SWF was required. The em- ployer added that in any event, no punitive damages or penalty is payable in this case. In April 2014 Riley Burton, the new chair in Kuzyk's pro- gram, spoke with Kuzyk about course CE 208. Since 2010, Kuzyk and two other employees were given a one-week field assignment in the course. According to Kuzyk, Burton came to him to tell him he was going to receive the one- week assignment as he had in previous years. Kuzyk said he was told he had not yet received a SWF relating to that course because of an ad- ministrative oversight. Burton, however, testified he made no commitment to assign Kuzyk to course CE 208 in April 2014. He simply sought infor- mation as to how the course had been assigned in the past. Following the conversation with Burton, Kuzyk began pre- paring for the CE 208 assign- ment. On April 23, 2014, a program coordinator spoke with Kuzyk about a separate matter. When Kuzyk mentioned he still had not received a SWF for the as- signment, the co-ordinator in- formed him that administration decided an outside survey firm would deliver the field work for that course. Kuzyk and OPSEU claimed the assignment was made to Kuzyk during that April 15 con- versation. Because no SWF was issued more than six weeks prior to the scheduled commencement of the assignment — as required by the collective agreement — the union argued there was a past precedent for paying com- pensation in accordance with the "snow formula" when SWF forms were not provided in a timely fashion. The employer, however, ar- gued no assignment was made. It also asserted that even if an assignment had been made no penalty should be awarded. The employer argued the snow formula referenced by the union arises in different circum- stances — when the employer was found to have been repeat- edly guilty of the late issuance of SWFs — and should not be ap- plied in this case. Arbitrator Norm Jesin agreed, saying, "In the circum- stances described… I am un- able to find that an assignment was made to the complainant. Mr. Burton was very adamant that he made no commitment to assign the work and although the complainant may have fell under an expectation that he would receive the SWF, I am un- able to conclude that Mr. Bur- ton was not telling the truth." Jesin found Kuzyk chose to prepare for the course without a confirmed delivery of the SWF and without confirmation from any number of other sources in the program. "The complainant had had the same assignment since 2010 and so the amount of prepara- tion should have been far differ- ent in 2014 than in 2010," Jesin said. "The evidence presented in my view does not allow me to conclude that the complainant suffered any real loss from his presumption formed on April 15 that an assignment had been made." As a result, the grievance was dismissed. Reference: Cofederation College and the Ontario Public Service Employees Union (OPSEU) Local 732. Norm Jesin — ar- bitrator. Wallace Kenny for the employer, Bert Dube for the union. March 30, 2015. < from pg. 1 ARBITRATION AWARDS

• Cover