Canadian Safety Reporter

7 Canadian HR Reporter, a Thomson Reuters business 2015 The union also pointed out that employees smoking inside their own vehicles didn't expose others to the smoke, cause a fire risk, or contaminate the com- pany's products, leaving no link to the blanket ban and Tracker's legitimate business interests. The company maintained that the no-smoking policy was with- in its management rights and a collective agreement provision stipulating its duties included instituting and maintaining "all precautions to provide every worker a safe and healthy work- place" — which its no-smoking policy and health and wellness strategy strove to do. In addition, Tracker argued that it was under no obligation to simply follow the minimum standards of legis- lation for its workplace. The arbitrator referred to a 2007 Ontario arbitration de- cision, Kingston Independent Nylon Workers Union v. Invista Canada, in which the arbitrator found that the employer would have to pay "a significant sum" if its employees continued to smoke, and a reduction or end to smoking would save the employ- er that amount — linking the cessation of smoking to the em- ployer's economic interest. The arbitrator in Invista also found that it was the right of a property owner to control what goes on in its own backyard, regardless of whether legislation allowed it. "Neither sex or soccer are 'ille- gal;' but it does not follow that ei- ther 'recreational activity' can be pursued on the employer's prop- erty, or during paid work breaks," said the arbitrator in Invista. The arbitrator also agreed with the Invista decision that supported the employer's ob- ligation to discourage hazard- ous behaviour on its prem- ises — something reinforced in Tracker's collective agreement provision mentioned above — regardless of whether employees were willing to accept the risk or not. According to the union, the hazardous behaviour of smoking on Tracker's property was differ- ent, said the arbitrator. "This alleged 'right' to in- jure yourself on the employer's property is, to say the least, an odd assertion from a health and safety perspective — particularly where there is no doubt that the employer normally has an obli- gation to search out and mini- mize risks from toxic substances and carcinogens in the work en- vironment," the arbitrator said. "Moreover, the employer has that obligation, because it is the employer who controls the work environment; and the union would be the first to complain if there were a known carcinogen in the workplace (a substance as demonstrably dangerous as to- bacco smoke), and the employer did not try to eliminate it or re- duce the employee's exposure." The arbitrator found that it would be inconsistent for an em- ployer to introduce a policy de- signed to encourage employees to quit smoking but allow them to smoke in their cars while on company property, when the lat- ter would negatively affect the broader goal of improving em- ployee health and wellness. The arbitrator determined Tracker's no-smoking policy that included a prohibition on smoking in personal vehicles while on its property was rea- sonable and within the com- pany's management rights. The union's grievance was dismissed. For more information see: • Tracker Logistics Inc. and Uni- for Local 4050, 2016 Carswel- lAlta 913 (Alta. Arb.). • Kingston Independent Nylon Workers Union v. Invista Can- ada, 2007 CarswellOnt 9156 (Ont. Arb.). July 8, 2013. The RCMP decided not to lay charges because it was difficult to determine a specific victim and there was a likelihood the officer was pursuing the matter only to be vindictive following his dismissal. Following a grievance, all four officers were reinstated in Feb- ruary 2014 with suspensions. The officer who complained of harassment was given a three- month suspension. The centre hired an indepen- dent investigator to look into the officer's complaint. The inves- tigator determined the director did say something that was inap- propriate to the group of correc- tional officers, but a reasonable interpretation of the comments would not justify a fear of physi- cal harm. Unhappy with the decision, the officer filed a grievance claiming he was afraid of the di- rector because of the comments and wanted him to be "dealt with as per policy." The officer also request that he no longer be su- pervised by the director and be given $400,000 in punitive dam- ages. Arbitrator Lyle S.R. Kanee agreed that the director ap- proached the correctional of- ficers in the walkway, made the shape of a gun with his hand and said the comments refer- ring to bullets for each of them. However, he found that the cir- cumstances were stressful and emotionally charged and the di- rector's actions were a "momen- tary expression of frustration." Arbitrator Kanee noted that the director apologized as soon as the incident was raised in the meeting and didn't even remem- ber the details. In addition, the other officers present didn't take it as a physical threat and the complaining officer had spoken about the pressure he felt from the union to participate in the illegal strike, which may have contributed to his state of mind at the time, said Kanee. Arbitrator Kanee found that the centre's policy and booklet on harassment provided for a specialized complaint and inves- tigation process, which the cen- tre followed with its indepen- dent investigation. It rightfully determined that the director's actions were not harassment in the context of the circumstanc- es. "There is a serious risk of trivializing a label intended to address serious, problematic conduct by casting too wide a net," said Kanee. "It is incum- bent upon individuals in the workplace to try to sort out their differences among themselves without relying on formal pro- cesses or the intervention of third parties." Arbitrator Kanee determined the officer used the complaint and grievance process to "ex- press his overall frustration with management and his general perception that he was not being treated fairly by his employer." Though the director's conduct in the walkway was inappropri- ate, it didn't constitute harass- ment, said Kanee in dismissing the complaint. For more information see: • Alberta and AUPE (Borrelli), Re, 2016 CarswellAlta 610 (Alta. Arb.). No smoking < pg. 3 Bullets < pg. 6 Policy consistent with duty to promote health Context of circumstances important to consider e other officers present didn't take the comment as a physical threat and the complaining officer was under pressure at the time

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