Canadian Labour Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2015 November 2, 2015 Employee forgot about marijuana in his workplace locker due to habitual drug use. ARBITRATION AWARDS < from pg. 1 lective agreement in question is also governed by the Hospitals of Ontario Disability Income Plan. On the day for which Mayer sought benefit pay, she had a colonoscopy scheduled. The pro- cedure is one that requires the patient to not eat solid food be- forehand. Both parties agreed to the fact that Mayer was totally disabled for the entirety of that day in June. The ONA argued that Mayer's total disability was clearly related to the medically necessary colo- noscopy, and therefore she would be entitled to benefits under the income plan and collective agree- ment. Though the provision does name some exclusions, Mayer's procedure would not qualify for inclusion on that list, the associa- tion added. However, the hospital coun- tered that the colonoscopy was not a medical necessity but rather an elective procedure, thereby relieving any obligation for com- pensation. The grievor did not suffer an injury or illness and was not dis- abled as a result of undergoing the colonoscopy, the employer said. To provide a benefit in these circumstances is akin to providing benefits when employees undergo any medical procedure that result in them having to rest for the re- mainder of the day, it said. The qualifier in the collective agreement removed the em- ployer's obligation in this case: "(W)hen you become totally dis- abled as a result of injury or ill- ness." In making his decision, arbi- trator William Marcotte sought to establish whether Mayer's so- called disability was a debilitating one, and therefore would deter- mine benefit pay, if entitled to any. He found no evidence to sug- gest she was ill or injured prior to the procedure, nor could it be proven that the procedure caused her injury or illness. Therefore, the grievance was dismissed. "While the union argued the grievor's total disability was 'clear- ly related' to the medical proce- dure, that is not the test. The test is whether or not illness or injury caused the total disability," Mar- cotte's decision reads. Reference: MICs Group of Health Services and the Ontario Nurses' Association. R. Hickman for the employer, C. Hedman for the union. William Marcotte — arbitrator. Oct. 15, 2015. Smelter employee fired again after dismissal SHANE MALCOLM filed griev- ances against Glencore Canada after the employer fired him, and then fired him again. First, Malcolm was terminat- ed for excessive absenteeism in breach of his final chance agree- ment with the employer's New Brunswick-based smelter work site. A week after Malcolm's firing, the employer gathered his be- longings from his secure lockers on the work site, as per its policy. A small piece of silver and a clear plastic bag containing marijuana were discovered among his pos- sessions. The employer issued a second dismissal, citing the theft of silver material from the work site and Malcolm's violation of the com- pany's alcohol and drug policy. Malcolm's union — the United Steelworkers (USW) Local 7085 — filed grievances related to each of the terminations. Malcolm tes- tified his ongoing absences were a result of his travelling to obtain methadone as part of his drug ad- diction treatment and the union argued both dismissals were re- lated to Malcolm's ongoing back handicap and drug abuse addic- tion, both of which required ac- commodation. The union requested Malcolm be reinstated and compensated for back pay and lost benefits. The employer, however, argued Malcolm met with managers on several occasions as part of the company's absenteeism program and never raised the issue of a dis- ability or requested accommoda- tion. When Malcolm's absenteeism continued to be a problem a final chance agreement was struck. When Malcolm's continued absenteeism breached that agree- ment, he was terminated. Following his dismissal, securi- ty staff cleaned out Malcolm's em- ployee lockers in order to return his belongings. The piece of silver was estimated to have a value of about $10. The RCMP was called to seize the marijuana. A second letter of termination was drafted and sent to Malcolm, but no meeting was held as he was already fired. Malcolm testified he had no idea how the silver came to be in his locker. Concerning the marijuana, he claimed it was left behind several years before by RCMP officers destroying seized drugs using the employer's equipment. Malcolm said he planned to have the mari- juana burned, but forgot it was in his locker. According to Malcolm, his short-term memory has been af- fected by his habitual drug use, saying his "brain doesn't work as well as it used to." However, Malcolm's doctor testified he has made significant improvements following his ter- mination and could safely return to work with accommodation. The employer argued against reinstatement, citing the safety- sensitive nature of the workplace and Malcolm's lack of credibil- ity, as well as his refusal to take re- sponsibility or show any remorse for his actions. Arbitrator Robert Breen found Malcolm's drug addiction and back handicap were motivat- ing factors to his firing — both informed his ongoing absences — and ruled the employer was required to accommodate Mal- colm's disabilities to the point of undue hardship. Breen allowed both grievances, in part. No intent to steal the silver was established, and he therefore found no cause for discipline re- lating to the silver found in Mal- colm's locker. Concerning the bag of marijua- na, Breen was satisfied Malcolm did in fact forget about the drugs in his locker in light of Malcolm's own issues with addiction. He ordered Malcolm be re- turned to his workplace under several conditions. Malcolm was ordered to serve a two-month sus- pension without pay for the pos- session of marijuana. Following that suspension, Malcolm was ordered to return to work and be reinstated with all back pay and benefits owed to him. The employer and union are to share in that monetary compensa- tion. Additionally, Malcolm will remain subject to ongoing drug screenings. Reference: Glencore Canada Corporation and the United Steelworkers (USW) Local 7085. Robert D. Breen — Arbitrator. Jamie Eddy for the employer, Brenda Comeau for the union. Oct. 15, 2015.

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