Canadian Labour Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2016 January 19, 2016 ARBITRATION AWARDS February 8, 2016 violated the collective agreement. The schedule change happened when the employer decided it was no longer necessary to assign a floater registered nurse. Rather than eliminating the position, the employer converted it from a registered practical nurse (RPN) to a registered nurse (RN). The result was that the hours of work performed by practical nurses were converted to part- time status, and two part-time practical nurses were converted to casual status. Arbitrator Norm Jesin said the issue here was the nature of the work — and that the duties per- formed by RPNs and RNs are vir- tually the same at this worksite. However, in each of the two col- lective agreements that governed the long-term care facility, there were provisions addressing the hours of work. Essentially, if Local 1110's grievance were to succeed and an order was made to reinstate the RPN position, the employer would have had to assign an ad- ditional RN to meet its minimum staffing obligation with the nurs- es' association. The union argued the em- ployer should not have assigned a home area which was being covered by an RPN under its col- lective agreement to an RN em- ployed in another bargaining unit. Both the employer and the nurses' association said that as the duties of the two positions clearly overlap, it is within the employer's management rights to have elimi- nated the floater position and re- assigned an RN position to one of a previously assigned RPN. It was within its rights to reor- ganize in order to boost efficiency. Jesin determined that, in this case, there was no reorganization of duties. Instead, the employer simply eliminated a floater as- signment held by an RN and then re-assigned the duties in one area from the RPNs to the RNs, result- ing in a reduction of hours for RPNs, Jesin said. "In my view, the (collective agreement) prevents the employ- er (from) simply transferring this assignment from the RPN to the RN," Jesin said, adding that the minimum staffing requirement between nurses and the employ- er did not trump the collective agreement. "Such a bargain cannot come at the expense of the protections which the employer had previ- ously agreed to with Local 1110 in the collective agreement," he said. He ordered the employer to re-assign the functions in that particular area back to the RPNs employed under Local 1110's bar- gaining unit. Reference: Labourer's International Union Local 1110 and Henley House Long Term Care Facility and the Ontario Nurs- es' Association. Adrienne Anderson for the union, Robert Kelly for the employer, Robert Dobrucki for the association. Norm Jesin — arbitrator. Jan. 19, 2016. Foreman suspended after calling employee 'dog killer' GORD MADSEN, a foreman for the city of Winnipeg's Public Works Department, was suspend- ed for 10 days without pay after he accused an employee of being a "dog killer." The employee in question — Joshua Weisz — was spreading sand on the streets of a residential subdivision in March 2014, when his vehicle struck and killed a dog. Weisz immediately called his su- pervisor Randy Pal and explained what happened. Pal, along with Madsen, attended the scene. In reviewing the scene to deter- mine how the collision with the dog may have occurred, Madsen expressed the opinion that Weisz may have deliberately struck the dog. Based on the tracks the ve- hicle made, Madsen told Pal it looked like Weisz was trying to run the dog off the road. Pal dis- agreed with this speculation. After the city's Animal Services Branch arrived on the scene, the three men returned to the Public Works yard. Pal spoke with Weisz in the lunchroom and advised him to prepare a written statement about the incident before returning to his office to write his own state- ment. Madsen then approached Weisz in the lunchroom and asked to speak with him. Madsen asked Weisz to go over what had happened and explain the colli- sion. Weisz testified that Madsen be- came angry as he spoke. He said Madsen moved very close to him and demanded a better explana- tion, calling Weisz a "dog killer" and suggesting Weisz had killed the dog deliberately. Weisz said Madsen advised him to get his story "straight" because the police would be coming. Up- set by this interaction, Weisz went to Pal's office and reported what had happened. Pal spoke with Madsen and told him it was inappropriate to ac- cuse an employee of wrongdoing based only on his own personal suspicions. Pal suggested Madsen say he was sorry so Madsen called Weisz that night to apologize. While Weisz accepted the apol- ogy, he was very upset by the in- teraction and felt he was harassed by Madsen. As a result, a hearing was convened and the decision was made to suspend Madsen for 10 days without pay. Madsen's union — the Cana- dian Union of Public Employees (CUPE) Local 500 — filed a griev- ance. The union argued the dis- cipline was unwarranted under the circumstances and that if dis- cipline was warranted, a 10-day suspension without pay was ex- cessive. The union further argued the employer did not have evidence, or at least had insufficient evi- dence, to justify discipline. The employer, however, argued Madsen had been verbally abusive towards a junior employee. The employer also argued Madsen's recent disciplinary history was a significant factor in its decision to impose a 10-day suspension. Madsen had previously been temporarily demoted and was suspended twice due to incidents involving verbal confrontations. Madsen did not seem to grasp the importance of treating his fel- low employees with respect, the employer said. Because previous discipline and training had proven ineffec- tive, the employer had adopted an approach consistent with the principles of progressive disci- pline. Arbitrator Blair Graham agreed with the employer's de- cision, saying, "The discipline, which it chose to impose, al- though severe, was within a rea- sonable range of outcomes when assessed in the context of the grievor's prior disciplinary re- cord." As a result, the grievance was dismissed. Reference: The City of Winnipeg and the Canadian Union of Public Employees Local 500. Blair Graham — arbitrator. John Jacobs for the employer, Kevin Carswell for the union. Nov. 26, 2015. < Arbitration pg. 1 The union said the employer did not have sufficient evidence to justify discipline. Re-assignment of nurse's duties violated collective agreement.

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