Canadian Labour Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2015 November 30, 2015 ARBITRATION AWARDS Dejong's union, Unifor Local 914, filed a grievance on his behalf. While Unifor believed Dejong's action was wrong and therefore deserving of some discipline, it ar- gued termination was dispropor- tionately harsh. For one, Dejong — who had joined the company at 19 — had more than 45 years of service and was 64 years old when he was fired. Dejong also testified he did not think the empty spools were of any use or value to the company, and were destined for scrap. The em- ployee made a serious mistake, but it was a singular incident. As such, the union requested Dejong be reinstated with full re- dress for all monies lost. The company, on the other hand, said the dismissal of a long- serving employee is always a dif- ficult one for all parties involved, but that fact alone did not justify a reduced sentence. "The very long service of an em- ployee has never been accepted as a proper reason alone for reducing the penalty of discharge which is otherwise prima facie warranted in all cases of theft because such conduct strikes at the very heart of the employment relationship that is rooted in a notion of trust," counsel for the company argued. The company said it felt it could no longer trust its employee. Arbitrator makes decision In making his decision, arbitrator Gordon Luborsky sought to de- termine whether termination was justified, given all mitigating cir- cumstances. He decided to side with the union and allow the grievance, though in part only. "Given the company's under- standable misgivings about the grievor's ability to work overtime assignments in the evenings or nights when there is limited super- visory presence, it is just and rea- sonable to make the grievor's rein- statement conditional," he said. Therefore, for a reasonable amount of time, the company would have the unilateral right to schedule the grievor on the day shift only, or to bypass Dejong for overtime opportunities outside the day shift, when there would be minimal supervision. Luborsky said those conditions would apply for a period of one year following the date of rein- statement. Dejong was reinstated without compensation but without loss of bargaining unit seniority. His absence from work would be reflected on his employment record as disciplinary suspension without pay. Reference: Lanxess Inc. and Unifor Local 914. Micheil M. Russell for the union, Martin J. Addario for the company. Gor- don F. Luborsky — arbitrator. Nov. 20, 2015. Tardiness leads to termination under progressive discipline policy THE IRON Ore Company of Canada fired one of its Newfound- land-based employees as a result of its recently implemented pro- gressive discipline program. Lorne Winters worked rotating shifts as a maintainer operator at the employer's mine maintenance facility. On July 14, 2014, he missed a scheduled overtime shift. Win- ters called and left a message at the start of the shift to inform his su- pervisor he would not be attend- ing work. Winters had already used his allotted seven days of sick leave/ family responsibility leave so his supervisor expected him to bring a medical note when he reported for his next shift on July 15. Winters did not have a medical note excusing his absence when he returned to work on July 15. He apologized to his supervisor, say- ing he forgot it. When Winters returned to work on July 16, he still did not have a medical note. After consulting with an HR employee, Winters' supervisor in- tegrated him into the employer's new progressive discipline policy. Because Winters had a three- month suspension already on his file, the next step in the new policy was a four- to seven-day suspen- sion and final warning. When Winters was informed he was being suspended for four days and issued a final warning, he confided in his supervisor that he was struggling with depression. The employer offered Winters help from the employee and fam- ily assistance program (EFAP) and Winters went to the hospital to be assessed and get a medical note. Winters testified his doctor told him a medical note could not be backdated and no medical note was ever provided for his July 14 absence. On Nov. 30, Winters didn't come to work. When a supervisor called him at home, Winters said he had overslept and would report to work as soon as he could. He ultimately arrived one hour after his scheduled start time. The next step under the employer's progres- sive discipline policy was termina- tion of employment. The employer considered sev- eral factors before dismissing Winters, including his multiple disciplinary infractions and rela- tively short length of service. Union files grievance Winters' union — United Steel- workers Local 5795 — filed griev- ances against his suspension and dismissal. The union requested he be reinstated and compensated. The union argued the employer did not have just cause to disci- pline Winters for failing to bring a medical note for his absence on July 14 because the collective agreement only required a medi- cal note for sickness of more than three days. This article of the parties' col- lective agreement should out- weigh the employer's practice to require a medical note for every absence after seven days. The union further argued the employer failed to consider Win- ters' struggle with depression as it related to his absences from work, saying the employer set Winters up to fail. Arbitrator James Oakley dis- agreed the employer's policy to require a medical note after seven days of sick leave/family respon- sibility leave was in conflict with the parties' collective agreement. The agreement, Oakley said, does not state there are no other cir- cumstances when a medical note may be required. He found the em- ployer had just cause to discipline Winters for his absence from work and his failure to provide a medical note. The grievance was denied. Regarding Winters' failure to arrive at work on time on Nov. 30, the arbitrator found the employer had just cause to impose disci- pline. However, considering Win- ters' remorse and his personal and family issues at the time, Oakley ruled the employer did not give reasonable consideration to the case's mitigating factors. He ruled Winters' termination be substituted with a seven-day suspension and final warning. Winters was ordered reinstated subject to the seven-day suspen- sion and paid compensation from the date of reinstatement. Reference: Iron Ore Company of Canada and the United Steelworkers Local 5795. James C. Oakley — arbitrator. Darren C. Stratton for the employer, Lawrence E. McKay for the union. June 25, 2015. < from pg. 1 Medical note policy in conflict with collective agreement.

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