Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2016 ARBITRATION AWARDS June 6, 2016 Her union, the Canadian Union of Public Employees (CUPE) Lo- cal 4400, maintained that in her position with the guidance office, Morino performed duties com- mensurate with the responsibili- ties of a Level J senior office assis- tant. In fact, Morino was trained in Level J duties by her predecessor in the guidance office, the union said. In March 2014, Morino was asked to update her listed job du- ties. She did so, including a num- ber of Level J duties she had been instructed to perform. However, when she received the updated copy of her duties in June 2014, she found it differed from the list she had submitted and that a number of duties were missing. After inquiring about her listed duties, Morino was told to address the issue with her school's princi- pal. Morino did raise the issue in August 2014, and a meeting was held in September 2014. When nothing changed, Mori- no and CUPE filed a grievance in February 2015. According to the employer, Morino was not assigned or ex- pected to perform the Level J core functions. While Morino may have performed some of those duties to a "limited extent," she did not fulfill the functions of the Level J position. Arbitrator sides with employer According to arbitrator Tanja Wa- cyk, Morino would have had to have been "transferred" to a Level J position for a period of more than one working day in order for her to be entitled to remuneration consistent with the performance of Level J duties. In order for such a transfer to oc- cur, Wacyk said, the union would have to demonstrate Morino was assigned, expected or relied upon to substantially perform the core job duties of the Level J position which were not also a normal func- tion of her classification. "I am unable to determine the grievor was assigned, expected and/or relied upon to substantial- ly perform the core job duties of the Level J position," Wacyk said. "While the grievor maintains she was directed to perform the Level J duties, it appears this re- fers to her training by her prede- cessor. However, there was no evidence that individual had any authority to direct the grievor to perform duties above her clas- sification. Rather, it appears she simply trained the grievor in the position." As a result, the grievance was denied. Reference: Toronto District School Board and the Canadian Union of Public Employees (CUPE) Local 4400. Tanja Wacyk — arbitrator. Simon Mortimer for the employer, Megan Reid for the union. May 25, 2016. Long-service Saskatchewan welder disciplined for violating drug policy with medical marijuana A LONG-SERVICE journeyman welder at Mosaic Potash Colon- say's Saskatchewan mine site was disciplined for his use of medical marijuana as a violation of the em- ployer's drug and alcohol policy. The man suffered from an anxi- ety disorder and headaches. He obtained a prescription for medi- cal marijuana and authorization from the federal government for that prescription. He testified he did not use the medical marijuana at work, but used it in his personal time. He disclosed this information to the employer's workplace occupa- tional health registered nurse. Following that disclosure, the welder was suspended from the workplace and placed on paid leave because his prescription was prohibited under the employer's drug and alcohol policy. He was told to explore other treatment options that did not vi- olate the policy or remain off work until the treatment was no longer in violation of the employer's pol- icy. He chose to discontinue his marijuana use and returned to work on Jan. 12, 2015. However, the employee filed a grievance through his union — the United Steelworkers (USW) Local 7656 — alleging discrimina- tion because of his medical pre- scription. In relation to the issue, the em- ployer had requested he disclose his medical records. The employ- er requested the union disclose his application for medical mari- juana authorization, the autho- rization he received, and records demonstrating the quantities and strains purchased. The employer also requested all documentation from the welder's doctor on his medical conditions treated by medical marijuana, the treatments proposed and the treatments taken. The union, however, was not willing to disclose medical re- cords pertaining to his medical conditions or the treatments that were proposed and subsequently undertaken. The union argued the medical records were not relevant to the grievance. The employer disci- plined the welder because he held a prescription for medical mari- juana and the issue was limited to whether that discipline was arbi- trary. Whether his condition could be treated with alternative methods was not at issue. The employer, however, argued the fact of whether the employee did in fact suffer from the medical condition claimed, whether the employer had to accommodate that condition and whether al- ternative treatment was available was relevant to the grievance. The employer was required to accommodate the underlying dis- ability, the employer argued, not the prescription. The employer was also, it stated, bound to pre- vent any employee impaired by alcohol, drugs or any other sub- stance to work in the mine. "I do not see how the employer can put the existence of the griev- or's underlying medical condition into issue," said arbitrator Wil- liam Hood. "It follows that if the underlying medical condition is not an issue at this point, medical documentation or information relating to 'underlying disability' is not relevant, let alone 'arguably relevant' to the matters in issue in the grievance." However, Hood ruled the med- ical records were relevant to the other issues raised. The employer called direct attention to the dis- tinction between its obligation to accommodate disability, and not the welder's prescription for med- ical marijuana. "I do not see how the employer would be able to argue its case in this regard if it was not permitted to have access to at least part of the grievor's medical records," Hood said. Hood ruled the employer was not entitled to receive the employ- ee's complete medical records but, where the medical records touched upon the treatment pro- posed or undertaken, they should be produced to the employer. Hood also ruled that the union could redact any portions disclos- ing information about his under- lying conditions. Reference: Mosaic Potash Colonsay ULC and the United Steelworkers (USW) Local 7656. William F.J. Hood — arbitrator. Kevil Wilson for the employer, Gary L. Bainbridge for the union. April 7, 2016. < Arbitration pg. 1

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