Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2016 ARBITRATION AWARDS July 25, 2016 for jobs, the collective agreement with the Ontario Nurses' Asso- ciation stated: "Nurses shall be se- lected for positions… on the basis of their skill, ability, experience and qualifications. Where these factors are relatively equal amongst the nurses considered, seniority shall govern." But the union said Taylor was prevented from demonstrating she was "relatively equal" to Be- gin, and the hospital did not con- sider qualifications in making its assessment. Instead, it said the employer relied entirely on the employees' respective perfor- mances during their interviews. But the hospital said the two candidates were considered equal when it came to qualifications and experience, based on their applica- tion letters and resumes, and one supervisor's familiarity with their work. The definition of "qualifica- tions" is particularly germane to this case, said Dana Randall, and although the 15 questions in the interview did a poor job of explor- ing qualifications, this was not a fatal flaw to the process. "It would serve no purpose to ask them what their qualifications were, in the interview, when the panel already had that informa- tion before them." The union also said the mark- ing system bore little resemblance to the four factors or the questions asked and answers given, and pan- el members did not prompt Taylor to give more fulsome answers, to her detriment. Again, while the marking grid could have been improved to better reflect the skills and abili- ties being assessed, "that cannot be dispositive of the grievance," said Randall. "The standard of review of job competitions is not perfection… The panel used the grid to mark the candidates to the best of their abilities in order to distinguish between them with respect to the factors of skill and ability. Where there is neither an allegation of favouritism nor reli- ance on irrelevant or improper considerations by the panel mem- bers, arbitrators have rarely sec- ond-guessed the marks awarded by a competent panel and I see no reason to do that here." As for prompting during the interview, Begin "nailed" the in- terview, being well-prepared and seizing the moment, said Randall. "(Taylor) appears to have had no such strategy. Her answers to the 15 questions asked by the panel were brief; her interview half the length of Ms. Begin. She was less confident and far less engaging." The interview was meant to as- sess the candidates with respect to skills and ability as those re- lated to the qualifications for the educator position, said Randall. "On a standard of reasonable- ness, the interview process did that fairly and dispositively," he said. "The hospital acknowledges that the interview played a determina- tive part in the selection process, but makes no apologies for that. The position of educator demand- ed an assessment of a variety of soft skills and abilities specific to that role and the interview was ideally suited to demonstrating Ms. Be- gin's superiority regarding same." Hamilton Health Services as- sessed all four factors, said Ran- dall, in dismissing the grievance. "The hospital did not rely on the interview to the exclusion of all other assessment tools and I so find (w)hile the interview process was not perfect and the marking scheme problematic, I have no doubt that the panel, which was both highly competent and com- pletely unbiased, made a unani- mous decision that Ms. Begin's skills and abilities for the educator position were superior. Frankly, there is no basis for me to overturn that decision." Reference: Hamilton Health Services and the Ontario Nurses' Association. Arbitrator — Dana Randall. Theodore Kovacs for the employer, Rob Dobrucki for the union. July 5, 2016. Employees terminated after 'sweethearting' tequila drinks A CASINO WAS justified in fir- ing two long-time employees after a bartender served multiple tequi- la drinks to an off-duty bartender without fully charging for them, according to an arbitrator. On Nov. 12, 2014, bartender Mariela Jara was off duty and seated at the Baccarat Casino in Edmonton, but she was perform- ing union business. Bartender Stephanie Krykowski served Jara four drinks but only charged her for two drinks and a meal. The company alleged the prac- tice of "sweethearting" (providing a benefit to a fellow worker against the rules) happened and thus damaged the trust relationship be- tween employees and employer. Arbitrator Andrew Sims ruled in favour of the casino. The policy implemented called for bar and wait staff to enter all drinks into the point-of-sale (POS) system. Only managers are allowed to approve drinks as com- plimentary or spillage. The pair were eventually sus- pended before being asked to at- tend meetings to explain their actions. During the questionings, the employer felt they were being evasive and not fully honest with their answers. The terminations also took place as the company and union were heading into new contract negotiations, which were expect- ed to become contentious. Both Jara and Krykowski were shop stewards. And previous incidents showed the relationship between Jara and Krykowski, and immediate super- visors, was strained. Arguments were repeatedly happening be- tween union representatives and management, said Sims. While the events occurred dur- ing a very strained labour-man- agement relationship, Sims said he did not think "the initiation of this investigation or the subsequent decision to terminate the grievors are a result of anti-union animus." The investigation seemed to follow standard procedure, he said: "There is a difference be- tween a very poor and confronta- tional working relationship and proof of anti-union motivation for a particular act of discipline. The one may, but does not automati- cally, lead to the other." And while there may have been undue emphasis placed on try- ing to get the two women to con- tradict each other and on the re- corded evidence than there was in providing any opportunity for ex- planation, Sims was "not persuad- ed that any of this altered the re- sults in terms of the conclusion of just cause or the penalty imposed." He also did not accept that the two women did not understand, or were not sufficiently trained in these new policies. "Rather, my conclusion is that they had formed the view that the union should have been much more involved and they were enti- tled to resist new policies and not change past practice until, in their opinion, that had taken place." As a result, Sims did not find that termination was too harsh a penalty or that the substitution of a lesser penalty was justified. "While I accept the value of progressive discipline generally, this is a case where the offence is such that proceeding straight to termination was justified. Neither grievor accepted the occurrence or the seriousness of what took place. In Ms. Krykowski's situa- tion, she maintained, even in the face of clear video evidence, that most of the drinks were not dou- bles, and she offered no excuse for her failure to enter drinks on Mi- cros as required. Ms. Jara's defense is that she was unaware through- out that she was getting more al- cohol than she ordered or that she was not being billed appropriately. I do not find that credible." Well-accepted case law sup- ports the view that sweethearting is tantamount to theft, said Sims, "and that where this occurs, par- ticularly in the face of clear policies designed to prevent the practice, usually results in termination." Reference: Gateway Casinos & Entertainment and the United Food and Commercial Workers Canada Union. Arbitrator — Andrew Sims. Dwayne Chomyn, Jessica Thomson for the employer. Kara O'Halloran, Andrew Buchanan for the union. June 15, 2016.

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