Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2015 June 22, 2015 area on company property dur- ing their breaks. Effective January of this year, no smoking would be allowed anywhere on the employer's property. Additionally, employ- ees were prohibited from leaving the property during breaks. This essentially banned employees from smoking at any point dur- ing their shift. When the second phase of the policy was put into place in Janu- ary 2015, the union filed a griev- ance, arguing the policy was too restrictive. Employees could easily smoke off company property during their breaks and return to work before their break ended, the union said. The policy amount- ed to a total smoking ban dur- ing the workday, which was an unreasonable restriction of em- ployees' freedom of choice. The union argued the policy was an unreasonable exercise of the employer's management rights. However, the employer ar- gued it was entitled to require employees remain on its premis- es during the break because em- ployees are paid during breaks. The employer brought evi- dence of the costs associated with increased absenteeism and increased insurance benefit costs related to smoking and said it would accommodate employ- ees with substantiated addic- tions by placing them in a pro- gram designed to help them stop smoking. Arbitrator weighs in Arbitrator Norm Jesin agreed the costs of smoking to health and business are well-document- ed, but said an employer can- not prohibit an employee from smoking off its property. "The employer's property in this case is not so extensive that an employee would be unable to take a few minutes during a lunch break to smoke off of the employer's property and still return well before the recom- mencement of his /her shift," Je- sin said. So while the employer was well within its rights to ban smoking from its property, the further prohibition from smok- ing off property during breaks was found to be an unreasonable exercise of management rights and in violation of the collective agreement. Jesin remitted the matter back to the parties and remained seized to resolve any dispute arising from the implementation of his award. Medical form The second grievance related to a new medical form the employ- er required employees to present to their doctors for completion following sick leave. Previously, employees absent for more than three days due to illness were required to produce a medical note from a physi- cian. Implemented in January 2015, the employer's new policy required employees to ask their physicians to fill out a two-page medical form for all absences lasting more than three days. The form included informa- tion such as the date of the in- jury, whether the injury was oc- cupational, whether the injury was recurring and the expected return-to-work date. The union argued the form was intrusive and cumbersome. The employer, however, ar- gued the form acted as a tool to find out whether an employee may be able to return to work earlier if their duties were sub- ject to temporary limitations as directed by their physician. In this way, the employer said, em- ployees could be encouraged to return to work sooner, reducing related costs. The employer insisted no consequences would befall an employee whose physician re- fused to fill out all or part of the form. Jesin found the form sought no information to which the em- ployer was not entitled. Given that there were no repercussions for employees where a physician refuses to fill out all or part of the form, Jesin found the employer to be well within its rights to re- quire employees to submit the form for completion. The grievance was dismissed. reference: Veyance Technologies Canada and the United Steelworkers Local 7175. Norm Jesin — arbitrator. Tom Moutsatsos for the employer, Kevon Stewart for the union. June 3, 2015. Transit driver dismissed after rowdy ride a laTe-niGhT bus driver in British Columbia was fired af- ter passengers on his route got rowdy. Being a resort town, Whis- tler, B.C., operates under a so- cial contract that encourages late-night partying and provides safe, after-hours passage home. This usually makes bus drivers the front-line caretakers of ram- bunctious passengers, often col- loquially referred to as a "zoo" by transit employees. Tim Welsman was one of the drivers for Whistler Transit as- signed to a late-night route in November 2014. At one stop, one passenger sought to distract Welsman as others, many of whom were inebriated, boarded without paying. A short time lat- er, the culprit exited the bus and his friends began to swing and hang from the hand rails. Welsman made an abrupt emergency stop to tell the group of passengers to hold on and be safe. The incident became heat- ed, and the group of riders began to yell and curse. The so-called troublemakers exited the bus at the following stop, threatening, kicking and spitting at the bus, and swearing along the way. Welsman visually swept the bus for any apparent injuries but, finding none, con- tinued on his route, despite pro- tocol. Whistler Transit dictates that any emergency stop should be followed up by a walk-through, to scope out any injuries. Wels- man, however, testified he be- came resentful of the "bus-load of drunks," a situation that had worsened over the years. Driver fired One week after the events, Wels- man was fired, prompting the union, Unifor Local 114, to file a grievance. Upon reviewing the incident, management determined there was no justifiable reason for the emergency stop and, further, the driver had endangered pas- senger safety and failed to follow correct procedure. One passenger, an athlete, later reported a minor injury to his knee. Welsman opted to punish, not protect, certain passengers without regard to the safety of other riders, the employer said. The incident was not reported until he was prompted by his manager, and he did not accept responsibility for his actions — something that had now become rote. As such, the employer felt it was right to fire him. In Welsman's mind, nothing occurred that warranted an in- cident report. He did not see any injuries and was not informed of any. According to the union, he had a clean driving record and there were two versions of events on the night in question, and testimony from a rowdy group of passengers could not be more credible than the driver himself. Yes, Unifor conceded, Wels- man was irritated, but it was by no means "malicious." There- fore, there was no cause for dis- cipline and dismissal was exces- sive. Arbitrator James Dorsey agreed with the employer. A reckless and unjustifiable emergency stop, without regard for risk of injury, demonstrated a cavalier approach. Not report- ing the incident only intensified the cause for discipline. The grievance was dismissed. reference: Whistler Transit and Unifor Local 114. Larry Page for the employer, Harry Moon for the union. James E. Dorsey — arbitrator. May 19, 2015. ArbitrAtion AwArds < from pg. 1

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