Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2016 August 29, 2016 ARBITRATION AWARDS but there was a problem with the readings. He submitted a non- conformance report indicating the results were not true. After an investigation, it was determined K.L. falsified earlier results due to what he called an increased workload, as a colleague working in Edmonton was on va- cation. The investigation found that K.L. had no other incidents during his 15-year tenure with CBS, so he was given a warning letter on Aug. 13, 2014. "The investigation also deter- mined that you came forward with information on your own accord and confirmed that at no other time in your 15 years have you not followed SOP (standard operating procedures)," according tosaid the letter. But after more detailed investi- gation, the company determined it wasn't the first time K.L. had fal- sified records and the only reason he was reporting was to forestall further discipline. "CBS considers that in light of this new information, it was not the case that you were honest, transparent and forthright of your own accord. Rather, when you were initially asked about the false information, you gave a false and misleading explanation," accord- ing to a Sept. 14, 2014, termina- tion letter. The Canadian Union of Public Employees (CUPE) Local 1846 grieved the case on the basis of double jeopardy, arguing a worker should not be disciplined two dif- ferent ways for the same incident. The company refuted this by indicating the original lies about testing were not known at the time of the warning letter. Jeff Whiting, who was the su- pervisor and returned from his vacation Aug. 11, reviewed past data after hearing about the falsi- fied reports. After speaking with K.L., who assured him that this was a one- time occurrence, the decision was made to write a disciplinary warn- ing letter on Aug. 13. But then Whiting began dig- ging further into the issue, be- cause it was escalated to his su- pervisor on Aug. 28. Director of equipment services Janice Poce then requested further testing be reviewed due to falsified readings. Whiting reviewed data from Aug. 8 and found further irregu- larities that weren't disclosed dur- ing the meeting with K.L. "For Mr. Whiting, it meant that the grievor had not only falsified the readings entered on the pro- tocol document in July, but had also submitted a false deficiency report dated August 8, i.e, evi- dence of a coverup meant to hide his earlier deceitful conduct," said arbitrator Tom Jolliffe. Jesse Charlton, a quality asso- ciate, had reviewed the admitted falsified reports but found that there were some problems with July testing in addition to the Au- gust results. When he spoke to K.L. about this on Aug. 7, it was agreed the tests had to be redone. During subsequent discussions with the supervisor and the griev- or, Charlton didn't raise the issue of falsified data from July, because he felt it was not relevant. "In all, having weighed the fac- tors and the principles set out in the cases cited at hearing, I do not conclude that this is a case where it is appropriate to substitute a lesser penalty for the discharge, which ultimate disciplinary pen- alty depends on the grievor having falsified the discrepancy reports on August 8, 2014, which he did, in furthering a coverup of his pre- vious wrongful actions," said Jol- liffe. "It was a serious workplace offence which would normally result in discharge as fraud, and breach of public trust, with there being no sufficient mitigating circumstances to persuade me otherwise than upholding the dis- charge." References: Canadian Blood Services Calgary Centre aAnd the Canadian Union Of Public Employees Local 1846. Tom Jolliffe — Arbitrator. Craig W. Neuman for the employer. Linda Huebscher for the union. June I , 2016. Parole officer keeps job despite 'barnyard' behaviour Multiple incidents of unwanted sexual advances, making inap- propriate comments on duty and undressing in plain sight of female co-workers contributed to a New Brunswick parole officer being fired for cause in 2015. But arbitrator Robert Breen ruled against the government agency responsible, citing a per- sistent "barnyard" atmosphere that tacitly encouraged the worker to keep up his salacious behaviour in the Moncton probation office. Kevin Kelly received a termi- nation letter on Oct. 2, 2015, that read in part, "Information gath- ered in this investigation revealed that you did exhibit numerous offensive and unwelcome behav- iours toward your co-workers found to be contrary to the New Brunswick Workplace Harass- ment Policy, specifically sexual harassment and creating a poi- soned work environment, there- fore, complaints are found to be substantiated." Kelly was a probation officer with three–and-half years' experi- ence at the time, and no previous record of discipline. In May, he was given a suspen- sion while an investigationtook place. It alleged that Kelly changed his clothing from workplace to gym attire, stripping down to his underwear in view of female pro- bation officers multiple times. It was also alleged Kelly grabbed the rear ends of two female officers more than once at off-site parties. Finally, Kelly was accused of making inappropriate sexualized comments to students who were at the office for "work term place- ment." He was also accused of con- stantly speaking to various co- workers in overly sexualized lan- guage and proposing to perform sex acts with female colleagues. All of the incidents were part of a "pattern of behaviour" that regional director Rock LeBlanc observed during his investigation. On various occasions outside and in the workplace, workers en- gaged in sexual behaviour and ex- changed sexual banter. The inves- tigation found that talking about penis size and demonstrations of "humping" were rampant among management and workers. "Further, the alleged 'humping', it contends, was 'a practice' in the workplace. Why was Kelly 'singled out?' it asks," said Breen. The Canadian Union of Public Employees (CUPE) argued on his behalf that the employer didn't propose to talk to Kelly about his behaviour or offer training to al- leviate the issue, instead it focused only on justifying termination. Management could have better handled the allegations from the outset. "I also conclude the failure of this employer to offer training or education appropriate to over- come the normative culture of the Moncton workplace, consistent with its policy, to be taken as a mitigating factor," said Breen. Kelly's actions "demonstrate a range of 'unwelcome conduct' constituting, I conclude, 'serious' sexual harassment," he said . But "the evidence led as to the Monc- ton office 'workplace culture,' in- cluding testimony that 'humping' behaviours and sexual banter, to which Kelly readily admits, is not 'his alone.'" Further complicating the case were Kelly's ongoing depression and anxiety, which made some co-workers uncomfortable. No other workers were disciplined for similar behaviour, said the union. "Kelly, the evidence confirms, was considered 'different' by other employees. Did Kelly's medical condition play a part in this termi- nation?" Breen ordered Kelly reinstated but his five month suspension was upheld. Wages lost during the time outside the suspension are to be repaid. Kelly was ordered to participate in workplace sensitiv- ity training and personal coun- selling to address his depression, while the employer endeavoured to find him alternate employment at a different office location. References: New Brunswick Department of Justice and Public Safety and the Canadian Union of Public Employees, Local 1418. Robert Breen — Arbitrator. Maya Hamou for the employer. Monique DesRoches for the grievor. July 28, 2016. < Canadian pg. 1

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