Canadian Labour Reporter

11 CANADIAN LABOUR REPORTER ARBITRATION AWARDS Canadian HR Reporter, a Thomson Reuters business 2015 mowed the grass, maintained the sprinklers and handled the gar- bage, as well as tended rose bushes and shrubs and trees, thereby making the work exclusive to the union. According to the collective agreement, routine work could not be contracted out unless par- ticularly specialized or without going through an extensive pro- cess. That process included reason- able notice to the union and a rea- sonable case made for effective- ness and cost by the employer. CUPE, therefore, said the em- ployer violated the collective agreement when it contracted out specific work on the ponds that the union felt belonged within the bargaining unit, and without due process. However, the city said the col- lective agreement allowed for the contracting out of specified or non-routine work arbitrarily. In this case, it felt the bargaining unit employees did not have the exper- tise to build the ponds. Further, no layoffs had resulted in the contracting out, so the em- ployer acted within its rights and in good faith. According to one city advisor, the $1.6-million project should be contracted out as there was to be a total transformation of the area and the job would not qualify as routine bargaining unit work. In that regard, arbitrator Ron- ald Keras sided with the employer, saying the work did not belong to the bargaining unit. However, the routine duties — mowing grass, maintaining wild- life, collecting garbage — should be considered traditional bargain- ing unit work Monday through Friday. The contractors will main- tain the ponds and beach area on weekends and statutory holidays. Reference: City of Castlegar and the Canadian Union of Public Employees (CUPE) Local 2262. Ronald S. Keras — arbi- trator. Carolyn MacEachern for the employer, Keith Nielson for the union. Nov. 30, 2015. Employee blames PTSD after being fired for theft BELL CANADA dismissed an employee for the theft and misap- propriation of funds after he stole from company payphone coin boxes. The employee, referred to as Employee B, was responsible for about 2,000 payphones in the Ni- agara and St. Catharines areas in Ontario. In addition to collecting funds from those payphones, he was responsible for their mainte- nance and repair. In 2011, Employee B witnessed a suicide. Following the incident, he suffered from post-traumatic stress disorder (PTSD) and major depressive disorder. And while he struggled with these issues, the company discovered Employee B was responsible for about $3,500 of payphone receptacle shortages between February 2012 and April 2014. The shortages were uncovered when, during a routine review of records, management discovered shortages in the receipts of Em- ployee B's co-worker Jim McAr- thur. An investigation was conducted and video footage of the location where McArthur and Employee B deposited their payphone coin receptacles showed Employee B opening his co-worker's collected coin receptacles and withdrawing funds. The footage showed Employee B systematically withdrew money from his co-worker's collection receptacle boxes over a period of time, never removing money from his own boxes. Additionally, further investiga- tion into Employee B's field activi- ties found one of the terminals he serviced had paper stuffed in the coin return. The paper could only have been placed by opening the terminal and had the effect of trap- ping a customer's coins. Confronted with the evidence, Employee B admitted to having stolen funds from the employer. He said that he had been strug- gling since he witnessed someone commit suicide by jumping from the Niagara Skyway into the water below in 2011. The employer fired the employ- ee on May 15, 2014, for the theft and misappropriation of funds. His union, Unifor, filed a grievance on his behalf. Employee B's doctor testified during the hearing, observing that depression and PTSD can affect judgment. The doctor also said theft can be linked to depression and PTSD, though he said PTSD is normally associated with theft that is com- pulsive in nature — such as shop- lifting — rather than the system- atic and planned theft carried out by Employee B. The employer argued the pre- meditated nature of Employee B's theft irreparably broke the bond of trust between employee and em- ployer. The employer also pointed out that his theft was limited to his work environment, demonstrat- ing Employee B was fully aware of what he was doing. The union, however, argued Employee B's diagnosis of PTSD and major depressive disorder should be considered as mitigat- ing factors in his overall level of culpability. He was a long-service employee with a clear record, the union said, and when confronted with the employer's evidence, he not only admitted to his actions but paid back the money. The union proposed several possible remedies, one of which was to reinstate Employee B solely for the purpose of enabling him to apply for disability benefits. Arbitrator weighs in "While I do not accept that the evidence before me establishes that the premeditated scheme of systematic theft spanning more than 24 months, for which the grievor was discharged, was di- rectly and fully prompted by his PTSD and depression, I must agree with counsel for the union that Employee B's condition must be viewed as mitigating to some extent the grievor's culpability," said arbitrator Michel Picher. Picher ruled the grievance be allowed, in part, directing that Employee B be reinstated effective immediately — without compen- sation or general benefits — for the sole and only purpose of his filing an application for long-term dis- ability benefits. In the event that his application was denied, Picher ordered Em- ployee B's status as an employee cease. Reference: Bell Canada and Unifor. Michel G. Picher — arbitrator. Evan VanDyk for the employer, Robert Church for the union. Nov. 26, 2015. Employee was reinstated for the sole and only purpose of filing an application for long-term disability benefits. Routine duties should be considered traditional bargaining unit work. < from pg. 1

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