Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2015 June 29, 2015 Following Starkes' dismissal, he was informed that, upon in- vestigation, the employer had found no basis for his claims of harassment against his colleague. Grievance filed Starkes filed a grievance against the employer, alleging his col- league had "covertly bullied, psychologically harassed and un- justly accused" him. Starkes also charged the em- ployer was in violation of the collective agreement as well as health and safety legislation by enabling workplace harassment, discrimination and bullying, as well as reprisal for his filing complaints against such alleged harassment. Starkes' union — the Ontario Public Service Employees Union — argued Starkes was dismissed without just cause, without jus- tification and in an arbitrary and discriminatory manner. The union argued that even as a temporary employee, Starkes was entitled to substantive pro- tection from harassment under Ontario's Occupational Health and Safety Act. The union further charged that the employer was obliged to exercise its management powers reasonably and in good faith with all of its employees, whether they were full-time or temporary. Employer opposed The employer, however, argued arbitrator Michael Bendel had no jurisdiction because at the time of his termination, Starkes was employed as a temporary placement co-op co-ordinator. As a temporary employee, the terms and conditions of Starkes' employment are dealt with in an appendix of the parties' collective agreement. As a result, none of the provi- sions of the collective agreement relating to harassment or termi- nation of employment apply. Arbitrator agrees Bendel agreed with the employer that as a temporary employee, Starkes was only entitled to the rights described in the relevant appendix. None of those rights, Bendel found, offered Starkes any pro- tection from termination of em- ployment or from harassment. Concerning the Occupational Health and Safety Act, Bendel agreed that section 50 of the act, which prohibits an employer from taking reprisals against an employee for exercising his rights under the legislation, could be considered within the ambit of the grievance. As a result, Bendel conclud- ed that he did have jurisdic- tion over the allegation that the grievor's employment was ter- minated as a reprisal for having complained about workplace harassments. None of the other allegations, however, were deemed to be within Bendel's jurisdiction. As a result, the hearing was scheduled to be resumed at a later date. Reference: Cambrian College of Applied Arts and Technology and the Ontario Public Service Employees Union. Michael Bendel — arbitrator. Timothy Liznick for the employer, Jane Letton for the union. June 3, 2015. Saskatoon bus driver who smelled of alcohol dismissed SteWart reaD, a proba- tionary transit driver employed by the City of Saskatoon, was sent home and promptly fired af- ter showing up for a shift smelling of alcohol — a decision upheld by an arbitrator. Read reported late for a shift in the summer of 2009 and his su- pervisor observed his eyes were glassy and he smelled of alcohol. Read was deemed unfit to drive a bus and was immediately sent home. The city then con- cluded he was an unsuitable em- ployee and terminated him. His union, the Amalgamated Transit Union's Local 615 chap- ter, grieved the dismissal. Because Read's employment status was well within the nine- month probationary period, as set out in the collective agree- ment, the city felt termination was justified. Moreover, the grievor did not have a clean record. That spring, Read was suspended for five days without pay when he failed to properly secure the bus he was driving. The offence was a seri- ous one, his manager said, as there had been a previous fatality when a bus was not secured, and thus a disciplinary policy came into effect. The union did not grieve the suspension. Read testified he was not drunk or impaired but rather he had had a few drinks at the bar with some friends the night be- fore. He said he overslept and rushed to work, without brush- ing his teeth or combing his hair. The reason his eyes appeared glossy, Read said, was because by the time he reported for duty, he had only been awake 13 minutes. When told to go home by his supervisor, Read complied, say- ing he was a new employee and did not know whether to defend himself or go home. The union, however, argued that in this particular contract, there was no distinction between probationary and regular em- ployees and, accordingly, there should not be the lesser standard of "unsuitability" for termination of probationary employees. For instance, unlike other agreements, this one did not de- prive probationary workers from the grievance process, among other rights typically held for full- time employees. Arbitrator makes decision In making his decision, arbitra- tor William Hood said the test for termination of a probationary employee in this case is not the more rigorous standard of "just cause" but rather the lesser stan- dard of "suitability." Hood rejected the union's ar- gument, saying that because the collective agreement does not speak directly to the standard of proof does not necessarily mean the standard is the same for all employees. While it is always open for both parties to contract other- wise, when an agreement is made regarding the probationary peri- od for new hires, the review stan- dard during the probation period is suitability, not just cause. And, in this case, the termination was reasonable. As such, the grievance was dismissed. reference: City of Saskatoon and the Amalgamated Transit Union Local 615. William Hood — arbitrator. Jon Danyliw for the employer, Gary Bainbridge for the union. June 16, 2015. ArbitrAtion AwArds < from pg. 1 Unlike other agreements, this one did not deprive probationary workers from the grievance process. as a temporary employee, Starkes was only entitled to the rights described in the relevant appendix.

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