Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2015 June 1, 2015 bottles in the work space and emptying the bottles in a sink- drain area at the end of his shifts. This was done in front of fellow employees, including one female co-worker who reported the is- sue to management the same day Couture was suspended. The employer launched an in- vestigation into the complaints against Couture and found sev- eral bottles of urine in the work space. He was subsequently fired. Couture's union, the United Steelworkers local 5795, filed a grievance requesting he be re- turned to work with an appro- priate penalty under progressive discipline. The union argued termination was too severe a discipline for the alleged infractions. Couture was working in the tool room as part of accommodation follow- ing a knee injury. According to the union, his medication caused urine urgency that was so severe, there was not always time for him to travel to the employer's bathroom facilities. The union argued Couture had apologized to the employer and promised he would act dif- ferently in the future. In his testimony, Couture said he realized urinating in plastic bottles in the work space was wrong after the employer made it clear that behaviour was not ap- propriate. He promised to "take care to make sure he could get to the bathroom" in the future. The employer, however, ar- gued discharge was the only option considering Couture's actions. Following his refusal to wear personal protection equipment, Couture was con- frontational with his supervisor, swearing at and threatening him. According to the employer, these first two infractions were in and of themselves deserving of sig- nificant discipline. When Couture's inappropri- ate and unsanitary behaviour in the work space was discovered, the employer said it had no op- tion but to impose dismissal. Arbitrator rules Arbitrator Wayne Thistle sided with the employer. "The grievor committed egre- gious behaviour when he chose to urinate in a drain at the front of the tool crib," Thistle said. "The grievor made a choice but he made the wrong choice, not once but on several occa- sions. The grievor's choice was deliberate and reckless. He does not seem to understand the grav- ity of his actions. His disregard of the rights and concerns of other workers and the company is un- acceptable and when all infrac- tions are considered, a severe measure of discipline is war- ranted." Based on these observations, Thistle said he found no basis to interfere with the penalty imposed by the employer. The grievance was therefore dis- missed. Reference: Iron Ore Company of Canada and the United Steelworkers Local 5795. Wayne Thistle — arbitrator. Chris King for the employer, Lawrence McKay for the union. Jan. 28, 2015. School catches custodian smoking marijuana on campus THRee cUSToDiAnS under the employ of the Ottawa-Car- leton District School Board were fired after allegedly smoking marijuana while on shift. Conor Donnelly and two other employees were let go after video surveillance appeared to show all three smoking marijuana while standing adjacent to a school and wearing uniforms that identified them as employees. This preliminary award han- dled whether the videotapes should have been submitted and considered as evidence — some- thing that forms the bedrock of the school board's case against its custodians. Arbitrator Paula Knopf called the case unusual in that the union's objection to video evi- dence rested primarily on the as- sertion that the surveillance was conducted contrary to the col- lective agreement and internal policy. She concluded the opposite. First, Knopf noted, context was important. Given that Don- nelly was a custodian assigned to the evening shift at an elemen- tary school, his responsibilities include maintaining cleanliness, general building and security up- keep, as well as recognizing and removing potential hazards or dangerous conditions. He worked with machinery and equipment that had the po- tential to be harmful, and inter- acted with students, teachers, parents and other staffers. Further, all custodians re- ceived training that explicitly named the "zero tolerance" pol- icy for controlled or restricted drugs. On the night in question, a supervisor was "pocket dialled" and he overheard a conversa- tion between the custodians, who were discussing the means and method of smoking the il- licit substance. The supervisor reported this to the CFO, who approved the installation of sur- veillance cameras in an attempt to catch the so-called drug traf- ficking happening on school property. The cameras were also ap- proved by the HR department. When enough evidence pre- sented itself, the custodians were fired and the Ontario Second- ary School Teachers' Federation (OSSTF) filed a grievance, argu- ing the "covert" surveillance was improperly undertaken and con- trary to the collective agreement. As such, the OSSTF asked that the discharge be declared void, or that the video and any deriva- tive evidence be declared inad- missible in court. This was a matter of privacy and it failed to comply with the board's policies — namely, that the surveillance was designed to gather evidence, not to meet specified goals of enhancing safety, protecting property or identifying intruders, said the union. The entire operation was not essential to the success of a pos- sible criminal investigation. As the union saw it, the employer seemed more interested in catching an employee in the act, as opposed to taking immediate steps to intervene. The school board maintained it held to its policies and because it had no indication of the com- plexity or extent of the alleged drug use, there was concern about trafficking and recruit- ment of other workers to the "rit- ual" use of drugs. Knopf determined the em- ployer committed procedural, not substantive, violations of its policy. "A failure to document and a failure to set down parameters of a retainer are procedural omis- sions," she said in the decision. "While intention is not a criti- cal factor, it should not be ig- nored that the evidence supports the conclusion that the mistakes were made as a result of mistaken intentions or oversight… The existence of video recordings is not the 'prejudice' caused by the omissions." Accordingly, given the proce- dural nature of the breaches and the fact that no prejudice was shown to be caused to the griev- or, this was not a case where it would be appropriate to declare the discipline void or to exclude the contested evidence. Knopf 's decision regarding remedy for the case at hand is forthcoming. Reference: Ottawa-Carleton District School Board and the Ontario Secondary School Teachers' Federation (OSSTF), District 25 Plant Support Staff. Paula Knopf — arbitrator. Stephen Bird for the employer, Joshua Phillips for the union. May 19, 2015. ArbitrAtion AwArds < from pg. 1

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