Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2015 July 20, 2015 ArbitrAtion AwArds he had found in a wallet in the lost and found area of the casino. His employer alleged he tried to avoid video surveillance when he took the money and, further, that he falsified reports in a log book, to try and hide the theft. Hennessy was suspended im- mediately, pending an investiga- tion. The employer consulted video evidence and log books, and then contacted local police, who charged Hennessy with theft. In May, Unifor informed the employer Hennessy was suffer- ing from a substance abuse prob- lem. But following the investiga- tion and after consulting the collective agreement — which specifically mentions a discharge penalty in instances of theft — it terminated Hennessy's employ- ment later that month. According to the union, the theft resulted from an addic- tion to narcotics. However, ar- bitrator Norm Jesin determined there was insufficient medical evidence to back this up, despite the fact there were other forms of evidence indicating such a prob- lem. Moreover, the employer ar- gued the drug problem was only raised after the grievor was terminated, and said this raises concerns as to whether there was indeed a causal connection be- tween the disability and miscon- duct alleged. Despite the collective agree- ment outlining discharge for cases of theft, Jesin sought to de- termine whether this was a case of discrimination for a disability, that is, Hennessy's drug habit. There was evidence Hennessy had attended a treatment clinic for methadone addicts, but no indication what the treatment was for, or whether it was suc- cessful. Therefore, Jesin was un- able to find he committed the crime because of his disability, or that the employer discriminated against him in that capacity. As such, the grievance was dismissed. reference: Complex Services, operating as Casino Niagara and Niagara Fallsview Casino Resort and Unifor Local 199. Norm Jesin — arbitrator. Simon Mortimer for the employer, Mike Menicanin for the union. July 13, 2015. employees dismissed after risking life and limb gLenn ALLen and Rafael Gonzalez were fired following a serious safety infraction. At the time of the incident, the two employees worked for Can- ada Malting at the company's large malting plant in Calgary. Allen and Gonzalez were found by their manager to be clean- ing the gears of a germination machine with no lockout safety equipment in place. Additionally, the two employ- ees had failed to isolate the elec- trical energy source for the ma- chine before entering the germ compartment. According to the employer, these failures to follow standard operating procedure could have resulted in "disastrous conse- quences" including serious in- jury to the workers or others. Because of the nature of the machinery, the equipment Al- len and Gonzalez were working on could have been started up remotely, and without warning, from several locations within the plant. The workers were cleaning around large open gears which, when turned on, could easily pull someone's hand or clothing into the moving mechanism and cause serious personal injury. Following the incident, the employees were sent home with pay pending an investigation. While neither worker had any prior discipline, the employer decided dismissal was appropri- ate considering the circumstanc- es. After acquiring the company in 2009, the employer imple- mented a comprehensive safety plan in an effort to create a "safety culture" within the plant. Workers received extensive training in standard operating procedures and job safety assess- ments. Canada Malting said deter- rence was an important factor in the decision to terminate. Union files grievance The United Food and Com- mercial Workers (UFCW) Lo- cal 1118 filed a grievance on the employees' behalf, arguing the employer acted in an unjust and unreasonable manner when it terminated the workers' employ- ment. The union requested full re- dress, calling for the workers to be reinstated and made whole with a written warning or a sus- pension of several days. The union argued the em- ployer had established a pattern of progressive discipline, and fir- ing the employees following one mistake did not take into account the viability of the employment relationship. Furthermore, the union ar- gued Allen and Gonzalez were employed as sanitation workers. Their primary duties involved the scheduled cleaning of floors, walls and equipment. When necessary, the workers carried out cleaning on the me- chanical equipment at Canada Maltin. The union argued Allen and Gonzalez had only ever per- formed this particular duty once or twice before. Their offence was not premeditated or repeti- tive, the union said, but a genuine mistake. Arbitrator weighs in Arbitrator Andrew Sims agreed, calling the incident a "serious lapse of care and attention, by each grievor, but given their rela- tive inexperience in carrying out this specific task, it was seriously negligent but not deliberately or knowingly reckless." While it is sometimes ap- propriate to bypass progressive discipline in favour of dismissal, Sims said, sufficient deterrence could have been achieved in Al- len and Gonzalez' case while still preserving two valuable employ- ment relationships. For this reason, Sims set aside the termination and in its place imposed suspensions of 15 working days without the loss of seniority. Otherwise, he ordered Allen and Gonzalez be made whole. reference: Canada Malting Co. Limited and the United Food and Commercial Workers (UFCW) Local 1118. Andrew C.L. Sims — arbitrator. Michael Ford for the employer, David Mercer for the union. June 17, 2015. Arbitrator reverses termination, imposes 15-day suspensions instead. Arbitrator unable to find employee committed crime because of disability.

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