Canadian Labour Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2015 July 13, 2015 In April 2014, however, Ste- venson used his gloved hand to manage the product, rather than the prescribed tool. A power outage resulted in some of the plant's machinery shut- ting down. The process of pro- duction cannot be shut down completely, and so chutes were installed to divert the product from its normal course onto a cooling tray. During this scenario, the product — which is still ex- tremely hot — is left to cool be- fore being managed by a techni- cian. This temporary set-up dur- ing the power outage required employees to manage some of the product as it moved from the chutes to the cooling trays. Stevenson was observed using his gloved hand to remove some product that was collecting on the chute. Stevenson had 25 years of experience at the facility at the time of the incident. When ques- tioned about his actions, he said he was fully trained in and un- derstood the company's stan- dard operating procedures and safety policies. The employer issued a written warning, making clear Steven- son's behaviour could not reoc- cur. Stevenson has one other written warning on his record, also the result of an incident where he engaged in what the employer deemed "unsafe con- duct." The Kingston Independent Nylon Workers Union filed a grievance on his behalf. Ac- cording to Stevenson, his un- derstanding of the operating procedure mandated the use of the rake when moving product on the cooling tray, not on the chute. He said the rake was necessary when handling product on the cooling trays because there was a risk of product falling from the chute and onto the tray, which could cause injury. Stevenson said he noticed product collecting on the chute and removed it so it would not fall on him. Stevenson testified that at the time he was trained in the employer's standard operating procedure and safety policies, his peer trainer used his gloved hand to manage product on at least one occasion. The union argued discipline was not warranted in Steven- son's case because the operating procedure does not specifically address the task of removing product that has collected on the chute overhead cooling trays. The procedure only refers to the use of the rake when managing product on the cooling tray it- self. The employer issued a writ- ten warning, which is the lowest form of discipline in the work- place. As a result, arbitrator Jesse M. Nyman said there was no issue of substituting a lesser penalty. The issue, then, is to dis- cern whether there are grounds for any discipline. "I find in this case that the grievor engaged in an unsafe act and that he did it knowing, or he ought to have known, it was dan- gerous and contrary to the spirit, if not the letter of the (standard operating procedure)," Nyman said. With or without the operating procedure, Nyman said, Steven- son understood that touching molten polymer is inherently dangerous. And while the oper- ating procedure may not specifi- cally address the management of product concerning the chute, the only reasonable interpreta- tion is that technicians are ex- pected to use a rake when han- dling the product. "While the concerns about the [standard operating pro- cedure], the grievor's training, his years of service and record may have had some resonance if there was any ability to substi- tute a lesser penalty that is not an analysis I have to engage in in this case," Nyman said. "I there- fore find there are grounds for some discipline and the griev- ance must be dismissed as a re- sult." reference: Invista (Canada) Company and the Kingston Independent Nylon Workers Union. Jesse M. Nyman — arbitrator. Robert Little for the employer, Ernie A. Schirru for the union. June 19, 2015. employer challenges wsib benefits A ForMer employee of the Ontario Ministry of Community Safety and Correctional Services lost a challenge regarding injury benefits she had been receiving after getting hurt on the job in 2011. The ministry had filed an ap- peal under the Workplace Safety and Insurance Act (WSIA), which the union said breached the memorandum of settlement that had been signed in 2013 and settled all outstanding issues concerning the grievor's previ- ous employment and termina- tion. According to the Ontario Public Service Employees Union (OPSEU), which filed the griev- ance, the grievor was still receiv- ing income from a preexisting claim under the WSIA. Because the employer did not file an appeal against that deci- sion, the grievor assumed it was business as usual and the income would keep coming in. Now, two years since the memorandum of settlement was signed, the grievor has found a new job and her loss of earnings from the injury were being re- duced by a top up of her salary. OPSEU argued the employer's challenge was a breach of the col- lective agreement. To appeal under the WSIA would be incompatible with the principles of the settlement orig- inally agreed upon, the union said, adding that the document was binding. On the other hand, the minis- try said it maintained the rights and entitlements under the WSIA, which the memorandum had not diminished. The purpose of the memo- randum did not intend that both parties should simply ac- cept whatever the Workplace Safety and Insurance Board rules, but rather, because the purpose is income protection, to determine the appropriate entitlement. As such, both parties remain able to challenge any decisions. The issue, said arbitrator Be- linda Kirkwood, was whether the memorandum provides or precludes the employer from filing an appeal regarding the grievor's entitlement arising from a decision made by the WSIB prior to the drafting of the document. The memorandum was a full and final settlement of all issues arising from the grievor's em- ployment and termination, and the parties took into account and protected her rights and entitle- ment under workers' compensa- tion. However, both the union and employer was entitled to pursue any other issue — apart from re- employment and reinstatement — under the WSIA. Accordingly, the ministry acted within its rights, and Kirk- wood dismissed the grievance. reference: Ontario Public Service Employees Union and the Ministry of Community Safety and Correctional Services. Belinda A. Kirkwood — arbitrator. John Brewin for the union, Felix Lau for the employer. April 21, 2015. ArbitrAtion AwArds with or without the operating procedure, employee ought to have understood danger: Arbitrator

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