Canadian Labour Reporter

8 ARBITRATION AWARDS Canadian HR Reporter, a Thomson Reuters business 2015 December 7, 2015 The International Union of Operating Engineers (IUOE), however, said Smith was entitled to severance pay as per the collec- tive agreement. The union said Smith was entitled to 17 weeks' pay because the employer closed its Kelowna branch and therefore caused the grievor to lose his em- ployment. It said the severance provision provided for an earned entitle- ment based on past service. Thermo King took the position that it did not terminate or close its operation in Kelowna, but that its expressed intention was to continue the mobile service op- eration as-was for at least another year. However, when Smith called to say he had been offered a job with James Truck & Trailer Repairs, any severance option was forfeit- ed. The employer understood that Smith had, by definition, quit and alternatives would need to be found to fill the need for custom- ers in Kelowna. The question at the centre of the award, therefore, was to deter- mine whether there was a perma- nent closure of a department that caused the employee to lose his employment with the employer. Smith's supervisor said he did not give the employee any di- rection that he should work for anyone else. The employee was a great mechanic, his quality of work was not in question and Thermo King had no reason to get rid of him, the employer added. Arbitrator weighs in Arbitrator Heather Laing called the circumstance unusual, and said the severance pay article did not apply to the grievor's situa- tion. He did not lose his employ- ment with Thermo King because of any of the conditions set out in the collective agreement, and in fact rejected the offer to continue working out of Coquitlam. "The difficulty for the grievor in this arbitration is that he did not 'lose' his employment because of any action or conduct of the em- ployer," Laing said. "He chose to reject the employ- er's alternative offers…he sought out and accepted employment with a new employer, who in turn began to service Thermo King customers, using the grievor's skills." The grievor made a clear choice, she added, and therefore dismissed the grievance. Reference: Thermo King of British Columbia and the International Union of Operating Engineers (IUOE) Local 115. Heather Laing — arbitrator. Don Watts for the employer, Brandon Quinn for the union. Nov. 2, 2015. Cleaner dismissed for working while on sick leave A CLEANER AT Providence Continuing Care Centre in Kings- ton, Ont., was fired for abusing sick leave. The employee started working as a cleaner at the facility in 1988. Before his dismissal, he had no discipline on his record. In 2012, the employer implemented an au- dit program to ensure the cleaning and housekeeping of the facility were up to standard. Under the program, each item in the room was listed and em- ployees were evaluated based on whether that item was cleaned to the appropriate standard. Em- ployees were expected to achieve a success rate of 85 per cent. The audit was not, however, implemented for disciplinary purposes. If employees did not achieve a success rate of 85 per cent, corrective action was taken to assist the employee to be able to meet the standard in the future. Until 2012, there had been no complaints about the grievor's work. Following the implemen- tation of the audit, however, the cleaner was unable to achieve the success rate of 85 per cent. As time went on, the worker's perfor- mance deteriorated. The employer testified the em- ployee was unhappy with the au- dit program, and was being unco- operative as a form of protest. After several months, he was achieving a success rate of 50 per cent. In an effort to improve the employee's performance, the em- ployer assigned a supervisor to work with him. On Dec. 19, 2012, the cleaner became frustrated with his super- visor and pushed his cleaning cart against a wall. He left the area and visited the occupational nurse. The employee claimed he was being harassed by the supervi- sor and, as a result, was under so much stress he was unable to work. On Jan. 4, 2013, he visited his doctor and obtained a note indicating he was suffering from acute situational anxiety and was totally disabled from work. As a result, the cleaner was ap- proved for sick benefits and went on leave. In February 2013, the employer was informed that an- other employee had witnessed the employee working for another company while on sick leave. The employer initiated surveillance on and confirmed he was in fact working as a cleaner at another location while receiving sick leave benefits. On March 13, 2013, the em- ployee was called in for a meet- ing to address the situation. He admitted to working at another location, saying that while he was unable to continue working at the facility due to the stress caused by his supervisor, he was able to con- tinue working elsewhere. According to the cleaner, it was necessary to continue working for other employers because he was caring for his ill mother and need- ed the money. The employee was terminated on April 12, 2013, for abuse of sick leave and serious breach of trust. So the Ontario Public Service Em- ployees Union filed a grievance on his behalf. The union argued the cleaner was clearly under stress and made bad decisions as a result of that stress. The union said he was un- aware he could not continue to work in other jobs while receiving sick leave benefits from the em- ployer and should, therefore, be excused for failing to disclose his other work. Arbitrator Norm Jesin, how- ever, said the employee's past as a union steward made that argu- ment unbelievable. "The grievor, as a steward and former acting president of the union, should have been keenly aware that in these circumstances, it was incumbent on him to make full disclosure of his secondary employment to his doctor and to the employer," Jesin said. "By fail- ing to do so, he has enhanced the suspicion that he was really seek- ing to maintain two incomes while only working at one job." As a result Jesin found the grievor committed a serious breach of trust and abuse of sick leave, ruling that the employer es- tablished just cause for discharge. The grievance was dismissed. Reference: Providence Continuing Care Centre and the Ontario Public Service Employees Union. Norm Jesin — arbitra- tor. Ron Pearson for the employer, Peggy E. Smith for the union. Nov. 16, 2015. Engineer not entitled to severance pay after jumping ship Employee found to have breached trust, abused sick leave

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