Canadian Labour Reporter

April 27, 2015 Canadian HR Reporter, a Thomson Reuters business 2015 McDonald's actions qualified as serious misconduct — main- tained that the termination of a long-service employee was an un- warranted response considering the mitigating circumstances. On the morning of the incident — May 22, 2014 — McDonald received a series of text messages from his wife. She was called into a meeting with management at her place of employment and was is- sued a suspension from work. McDonald testified he became very upset following his wife's news. He placed telephone calls during the noon hour to obtain contact information for the Em- ployee Assistance Program as he was feeling distressed. McDonald's movements fol- lowing those phones calls were recorded by the company ve- hicle's Automated Vehicle Loca- tion system. He briefly visited his wife's place of work before serving a notice at a customer address. McDonald then returned to his wife's place of work and waited in the parking area from 3:26 p.m. to 3:48 p.m. At this time, his wife's supervi- sor, Chelsea Argent, got into her vehicle and exited the parking area. McDonald followed. Argent testified that as she pulled out of the lot, she noticed a vehicle following her. She called a colleague, who suggested she make some lane changes to de- termine whether she was, in fact, being followed. Argent changed lanes and the vehicle continued to pursue her. She made a U-turn to take down the licence plate num- ber of the vehicle and saw that Mc- Donald was looking at her. He pointed two fingers at his eyes and then pointed them at her, mouthing the words, "I'm watch- ing you." Argent called 911 and de- scribed the incident to an officer, explaining the situation and pro- viding McDonald's address. A po- lice officer attended McDonald's home that evening and warned him that if he persisted, he would face criminal charges. The next day, McDonald re- ported to the Fortis Energy office and told a supervisor he had seen his wife and another man in a vehi- cle. He had followed them, he said, because he felt the need to protect her. McDonald made no mention of his wife's suspension, her super- visor or the involvement of police. He took several days' sick leave. Argent contacted Fortis Energy on May 27 to make a complaint against McDonald. McDonald was suspended with pay pending an investigation into the incident. He was discharged on June 11. McDonald's union — the Inter- national Brotherhood of Electrical Workers local 213 — grieved the termination. The union argued the employer failed to prove the employment relationship was damaged beyond repair. The union asked McDon- ald be returned to work, and said it would accept counselling for an- ger management as a condition of reinstatement. The employer, however, said the discharge was entirely justi- fied. McDonald's offence was in- credibly serious. He sought out, stalked and intimidated Argent. The triggering event leading to that misconduct was his wife's suspension from work. That oc- curred in the morning, the em- ployer said, giving McDonald hours to consider his actions. The conduct was premeditated and deliberate. Additionally, the employer ar- gued, McDonald was dishonest throughout the investigation and into the hearing itself. Arbitrator R.K. McDonald agreed, saying the grievor was de- ceitful and displayed a lack of con- cern for the truth. "I find that the employer's discharge of the grievor was for just and reasonable cause and that it was the only response to be reasonably expected in the circumstances. The legitimate interests of the employer de- mand acceptance of that result." The grievance was dismissed. Reference: Fortis Energy and the International Brotherhood of Electrical Workers Local 213. R.K. McDonald — arbitrator. Charles G. Harrison for the employer, Brett Matthews for the union. Feb. 16, 2015. Curtains for Mirvish theatre crew's costume fee PERFORMERS AT Toronto's Ed Mirvish theatre will have to pay their own costume fees, an arbi- trator has ruled. The grievance, filed by the In- ternational Alliance of Theatri- cal Stage Employees (IATSE) on behalf of the bargaining unit of stage hands employed by Mirvish Productions, alleged the theatre company violated the collective agreement when it refused to pay a "costume fee." It is common practice, and often required, that employees wear all-black clothing during live performances, so as not to distract from the show. Employees also typically don what they call "blacks" during rehearsals and during other non-live shows as well. However, during the produc- tion of the play Once, the direc- tor determined stage employees would wear everyday clothes as opposed to "blacks" so as to blend in better with the stage's pub setting. Employees did as such, and when they submitted their time sheets for the period worked, they also included claims for a costume fee of $45, per the col- lective agreement. As the union saw it, although the employees were sporting their own duds, they were entitled to compensation. "The employer required the employees to wear clothing for artistic reasons in order to 'blend into a scene' in accordance with (the collective agreement), dur- ing the time in which the employ- ees were restricted from wearing blacks," the union argued. IATSE counsel cited a previ- ous dispute at Mirvish, dating back to 2006, in which the union won a costume fee for stage hands who were required to wear hoods and gloves in addition to regular blacks. On the other hand, the employ- er submitted there was no explicit requirement or instruction re- garding wardrobe. Employees were simply asked to wear any work clothes they wished from their own ward- robe and that, therefore, did not amount to a requirement to wear clothing in accordance with the provisions of the con- tract. In his decision, arbitrator Norm Jesin concluded a restriction on the crew from wearing blacks — together with a preference that employees wear "standard ap- parel" — is not a requirement for employees' clothing that would entitle them to a costume fee. Because the garments were described so vaguely, and were al- ready owned by the crew, they can hardly constitute a literal costume, Jesin said. "That is not to say that cloth- ing must be supplied by the cos- tume department in order to be designated a costume. Clearly the definition in the collective agree- ment is far broader than that," he explained. "But in this case, employees were given almost unlimited dis- cretion in what they could wear with a stated preference that they wear 'standard working apparel.' (That) does not amount to a re- quirement that employees work in clothes to blend into a scene as contemplated by (the collective agreement," he determined in his decision. As such, Jesin dismissed the grievance that the employer vio- lated the collective agreement. Reference: Mirvish Productions and the International Alliance of Theatrical Stage Employees and Moving Picture Ma- chine Operators of the United States and Canada (IATSE). Norm Jesin — arbitrator. Ernie Schirru for the union, Simon Mortimer for the employer. April 17, 2015. < from pg. 1 ARBITRATION AWARDS

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