Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2016 January 19, 2016 ARBITRATION AWARDS February 1, 2016 The BCGEU filed a grievance alleging there was no shortage of work. However, the employer showed revenue from poker was trending down from 2012 as on- line gaming became more popular and drove up competition. The number of tables was re- duced from nine to three, but the collective agreement did not ad- dress what would happen if the game was eliminated entirely. The union did not dispute the em- ployer's right to discontinue poker, however, it argued that it could not reduce wages, as such action would violate the pay structure ne- gotiated by both parties. However, the casino argued the layoffs occurred as it reorganized and eliminated classifications, and a wage classification or structure was not an impediment to an em- ployer's exercising of its manage- ment rights to reorganize. While arbitrator Mark Brown agreed the employer was well within its rights to eliminate poker, there was no evidence that showed loss of hours due to a shortage of work, reorganization, closure or other material change in the op- eration. "There is no doubt that poker revenue was falling. The employ- er decided to move resources to other games by eliminating poker. However, this reorganization did not lead to a shortage of work or loss of hours of work," Brown said in his decision. "All the impacted dealers continued to work the same shift and schedule." Those who were moved around would have to be paid according to the schedule, he said. He added that the employer could eliminate the game but could not unilaterally amend the collective agreement's payment structure, which was based on em- ployee's merit and training level. Because both parties were en- gaged in collective bargaining at the time, Brown said the remedy should be reflected in the agree- ment and he would preside over further disagreements. Reference: Gateway Casinos & Entertainment Limited Starlight Casino and the B.C. Government and Service Employees' Union. Vincent Johnston for the employer, Ken Mooney for the union. Mark J. Brown – arbitrator. Jan. 8, 2016. Employee must allow access to psychologist's file THE Halifax Regional Water Commission called for access to an employee's medical records after she claimed her poisonous, unsafe work environment forced her off work. The grievor — referred to as AB — started work at the employer's wastewater treatment plant in January 2011. She alleged two male co-workers ostracized and ignored her to the point of creat- ing an unsafe work environment. As a result, she received treatment from both her family physician and a psychologist for stress and extreme anxiety, eventually going off work in July 2012. AB remained off work until February 2013. The woman, along with the Ca- nadian Union of Public Employees (CUPE) Local 227, filed a griev- ance, alleging the employer knew or ought to have known about what was happening but had done nothing to correct the issue. AB claimed full redress with respect to her loss of income and employ- ment benefits while off work, as well as general damages for stress and anxiety. The employer denied AB's al- legation and denied AB went off work solely because of work-relat- ed stress and anxiety. Because the issue of causation was called into question, the employer requested access to the medical records from AB's family physician and psychol- ogist. AB had already produced her family physician's file for the pe- riod of July 1, 2012, to March 30, 2013, and agreed to extend the pe- riod of that file's production back to January 2011. However, AB ob- jected to producing her psycholo- gist's file materials. The employer argued the files were relevant. The union intro- duced a report from AB's psychol- ogist in its grievance in support of the claim AB had gone off work because of anxiety and stress re- lated to the workplace. However, the file from AB's family physician makes note of stress associated with the grievor's personal life. The employer argued there was evidence in the psychologist's file justifying its concern that other factors in AB's life may have cre- ated the stress and anxiety that led her to leave work. The union, however, argued the information in the psychologist's file pertaining to AB's life outside of work was not relevant. The union submitted that AB — and other employees in a similar situa- tion — might not seek psychologi- cal care in the future for fear that their personal information would be used against them. To make this personal informa- tion public would send a message that employees should be careful about exercising their rights in cases like this, the union said, for fear their confidential information be exposed. Arbitrator Augustus Richard- son found the employer estab- lished the file in question contains, or at least could contain, informa- tion that is relevant to the griev- ance. As a result, he ordered it be made available to the employer under several terms and condi- tions. A copy of the file was to be sent to the employer's counsel only af- ter AB and the union's represen- tative redacted any information they considered to be irrelevant. Richardson ordered the employer would be entitled to challenge any of those redactions and any chal- lenge would be determined on a case-by-case basis. Once the matter is concluded, Richardson ordered the employer destroy the file by way of shred- ding the document. Reference: Halifax Regional Water Commission and the Canadian Union of Public Employees Local 227. Augustus Rich- ardson — arbitrator. John C. MacPherson for the employer, Karen Mackenzie for the union. Dec. 11, 2015. < Arbitration pg. 1 The employer must destroy the worker's medical records — by way of shredding the documents — once the matter is concluded. "This reorganization did not lead to a shortage of work or loss of hours of work."

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