Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2016 January 19, 2016 ARBITRATION AWARDS "The need to exclude drug or alcohol impairment was not necessary." January 25, 2016 through actions of employees, the excavator was pushed a few times and eventually buried under the deliveries. Through an investigation con- ducted by the employer, it was decided Sankey was the person re- sponsible for the mishap. However, the union said that by the time the grievor reported for duty, the excavator had al- ready been piled up, and further, that there was a lot of snow on the mechanism. One employer witness, an- other bargaining unit employee, testified Sankey said, "Fuck the mach (sic), I'll bury it." At the hearing, Sankey denied saying this. As the employer saw it, Sankey had willfully damaged or sabo- taged the employer's property, which was a serious employment offence akin to theft and should have been viewed within the con- text of criminal conduct. "The grievor's refusal to ac- knowledge and take responsibility for his conduct and to persist in ly- ing throughout the employer's in- vestigation provides the arbitrator with clear evidence that there is no viable sustainable employment re- lationship," the employer said. Therefore, Cariboo was well within its management rights to dismiss Sankey. However, the union, Local 1115 of Unifor, said there was no con- crete evidence that the grievor was responsible for the excavator pileup. Further, the employer's investi- gation was flawed and inadequate, thereby rendering the termination unjust and without cause. Unifor said the employer failed to inform Sankey of its investi- gation against him and only ap- proached him after it had inter- viewed other employees, more than one week after the night shift incident. "The employer did not provide any motivation on the part of the grievor, and having received a sus- pension earlier in 2015 and being told he was on the verge of termi- nation, it is difficult to accept that he would engage in a deliberate act and risk termination," the union said. The arbitrator agreed with the union. "No one saw the grievor bury the excavator and, in my view, there are other possible reasons," the arbitrator said. "There is no clear, cogent and convincing evidence that the grievor committed the offence. Just and reasonable cause for dis- cipline in this case has not been established." Therefore, the grievance was allowed and Sankey was reinstated. Reference: Cariboo Pulp & Paper Company and Unifor Local 1115. Ronald Keras — arbitrator. Donald Jordan for the em- ployer, Craig Bavis for the union. Dec. 29, 2015. Electrician off work after refusing drug, alcohol testing AFTER electrician George Degg was in an on-site accident, his em- ployer — Jacobs Industrial — re- quired him to undergo drug and alcohol testing. When Degg re- fused, he was barred from return- ing to work. Degg filed an individual griev- ance against his Ontario-based employer. His union — the Inter- national Brotherhood of Electri- cal Workers (IBEW) Local 353 — filed a policy grievance, argu- ing Degg was unjustly dismissed. Both grievances argued the re- quirement to undergo drug and alcohol testing violated the par- ties' collective agreement, Degg's privacy rights and relevant human rights legislation. The employer, however, argued Degg was simply suspended and could return to work as soon as he underwent the drug and alcohol tests. The employer's drug and alco- hol policy provided for mandato- ry post-incident testing if external factors had been eliminated as a possible cause for a workplace ac- cident. According to the policy, if drugs or alcohol cannot be ruled out as a contributing factor explaining the incident, then a post-incident test was required. On May 30, 2012, Degg was driving an employer vehicle with a box on the back and a trailer hitch. He drove to the site's administra- tion building and as he was park- ing his truck, backed into the only other vehicle in the parking lot. Two other employees witnessed the collision. Degg — who was wearing a safety helmet, safety glasses and ear plugs — used his side and rear view mirrors to reverse his vehicle into the parking spot. He did not turn around to look through his rear window because of a back injury, and he did not ask either of the other employees to assist him in backing into the parking spot. Following the incident, Degg told the employer he had not seen the other vehicle in the parking lot and admitted the accident was his fault. Later, he suggested one of the other employees in the park- ing lot should have spotted for him and guided him safely into the spot. The employer found that the circumstances of the accident were not outside of human con- trol, such as wind or weather, nor was there any mechanical break- down or operational upset. Be- cause Degg's actions were a con- tributing factor to the incident, the employer concluded the influ- ence of drugs or alcohol could not be ruled out and Degg would have to undergo a substance use test. Degg refused to take the test. He had been informed by the union's business agent that he was within his rights to decline the drug and alcohol tests, and said he feared the information gathered from the test would not be kept confidential. The union argued that for any testing to be justified, there must be reasonable cause. There was no sign of impairment in Degg's case, and as a result post-incident test- ing was unlawful. The union argued the issues of safety and personal rights must be balanced. Arbitrator Christopher Alber- tyn argued the employer's interest in the safety of employees trumps the individual employee's right not to be tested in trying to de- termine the cause of an incident. However, the incident in question was plainly the result of Degg's carelessness. "The accident had a credible ex- planation for Mr. Degg's failure to see the parked vehicle behind him, so the need to exclude drug or al- cohol impairment was not neces- sary," Albertyn said, referencing Degg's failure to turn around and look out his rear window or ask for assistance from one of his co- workers. Degg's grievance was upheld. The union's policy grievance did not find any defect in the employ- er's drug and alcohol policy and was upheld only to the extent it dealt with the particular circum- stances of Degg's case. The remedy was referred back to the parties for determination. Reference: Jacobs Industrial and the International Brotherhood of Electrical Workers (IBEW) Local 353. Christopher Al- bertyn — arbitrator. Roy C. Filion for the employer, Craig Flood for the union. Jan. 7, 2016. < Arbitration pg. 1

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