Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2015 August 31, 2015 ARBITRATION AWARDS Two of the grievances claimed the elimination of the RPN team leader position contravened the collective agreement, a third grievance asserted non-union staff members were performing bargaining unit work following the unit conversion and the final grievance claimed harassment and discrimination. There was little evidence sup- porting the grievance of harass- ment and discrimination as the union did not address the issue in its final argument. It was there- fore dismissed. Concerning the remaining grievances, the union asserted the employer improperly con- tracted out work of the bargain- ing unit when it created the po- sition of registered nurse team leader to take over the duties pre- viously performed by Presley. According to the union, the creation of a new role in another bargaining unit of the hospital amounted to a contracting-out of work. The employer, however, claimed its actions were a legiti- mate exercise of management rights. Aside from a letter of under- standing regarding contracting out, the employer said, there is no meaningful language pro- tecting the work of the bargain- ing unit in the parties' collective agreement. The employer also argued the creation of the registered nurse team leader was necessary as convalescent care patients often require more complex care than permanent long-term patients because of the emphasis on reha- bilitation. A registered nurse role was necessary to provide that care. Arbitrator Lorne Slotnick dis- missed this grievance, finding the employer was well within its rights to organize work as it saw fit. The conversion was an action taken by the hospital for legiti- mate reasons and protected by the management rights clause in the collective agreement. "No work was moved outside the hospital's location, but rather only to employees of this employ- er in another bargaining unit of the hospital," Slotnick said. "The work stayed in the same building, and it stayed with the hospital's unionized employees. In my view, this situation cannot be considered a contracting out." Concerning the issue of non- union employees performing work previously done by the bar- gaining unit, the union argued there was an improper perfor- mance of duties following the unit conversion as a manager performed certain duties while the registered nurse team leader was being trained. Slotnick dismissed this griev- ance, ruling management only performed bargaining unit work for a short period of time. The work was not moved from unionized staff to management, Slotnick said, but rather per- formed by management only as necessary during a training pe- riod. "It appears the hospital was not as straightforward about its intentions and its reasons as it could have been," Slotnick said. "While this may explain the genesis of the grievances, it does not lead to the conclusion that the hospital's actions violated the collective agreement." Reference: Kemptville District Hospital and the International Union of Operating Engineers. Lorne Slotnick — arbitrator. Carole Piette for the employer, Craig Stehr for the union. Aug. 6, 2015. Nurse dismissed for sexual misconduct AN EMPLOYEE was fired as a result of discriminatory conduct, and an arbitrator has ruled he will stay fired. Kevin Gavin, a radiation thera- pist since 1998 at the London Health Sciences hospital in Lon- don, Ont., was fired in August of 2014 after a number of women in the bargaining unit came forward saying he had harassed them in the office. Testimony from the three complainants included incidents where he had touched one em- ployee's buttocks, kissed the back of the neck of another, hugged, and tapped another on the but- tocks with a binder. Gavin also reportedly made offensive com- ments, including, "You're giving me wood right now" and "We took a poll and your ass wins ca- sual Friday." Two of the three witnesses came forward only after Gavin was fired, and two others testified via statements. Of the latter two, one suffered a disability, and stat- ed the grievor had made fun of her disability to the point where it caused her to suffer an emotional breakdown. She complained to the union in May of 2014 and her state- ment was submitted as evidence along with a written letter of apology she had received from the grievor. On the same day he was termi- nated, the Ontario Nurses' Asso- ciation (ONA) filed a grievance arguing that termination was ex- cessive. Seeking reinstatement, Gavin said since being fired he had tried unsuccessfully to find another ra- diation therapist position in On- tario and had been working for minimum wage since. Gavin justified his behaviour toward his coworkers by com- paring them to a family — in his mind, it would not be uncommon for a staff member to "pat another on the back." It was not until he heard testi- mony from the employer's wit- nesses and those who had com- plained against him that he said he realized his gestures were "misunderstood" and he should have been more "sensitive." He added that, for him, "humour was a way of life." The ONA echoed Gavin's ar- gument, adding that he had a clean record and was a 15-year veteran of the hospital. While discipline was warranted, ter- mination was overly harsh, the union said. The hospital disagreed. It was clear to the employer that Gavin had sexually harassed and as- saulted a number of employees over the years — there are many reasons a victim does not come forward to make a formal com- plaint, though that is not indica- tive of a so-called clean record. It had conducted a review by a hu- man resources consultant, who took care to let the grievor know the accusations against him, and gave him opportunity to respond. The employer felt it was jus- tified in terminating Gavin's employment as his actions vio- lated its health and safety policies and code of conduct, as well as harmed other employees. Arbitrator John McNamee agreed with the hospital and dis- missed the union's grievance. "I have considered the impact that a reinstatement might have upon the bargaining unit, which is mostly female," McNamee said. "In these circumstances, the grievor's return to work would undermine the employer's ability to maintain employee confidence in their right to a harassment-free workplace, and the belief that a valid complaint would be dealt with appropriately and justly." Reference: London Health Sciences Centre and the Ontario Nurses' Association. John McNamee — arbitrator. Brian O'Byrne for the employer, Rob Dobrucki for the union. Aug. 13, 2015. "It appears the hospital was not as straightforward about its intentions and its reasons as it could have been" < from pg. 1

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