Canadian Labour Reporter - sample

She also noted the driver's seat was fine but the bus overall gave a rough ride and she would see how she was feeling the next day. The supervisor remembered that Lorraine had been looking for someone to work for her the next day — Nov. 3 — and had men- tioned interest in attending a buf- fet dinner and bowling night that had been organized for transit employees that night. Lorraine claimed that during the night, she woke up due to sore- ness in her shoulder blade area. She took some pain tablets but was still sore the next morning. Lorraine was scheduled to work a full shift that day starting at 1 p.m. She reported to work and called the supervisor of op- erations to tell him she was feeling sore due to a problem with a bus the previous day. She said she had gone over a bump that jarred her. However, she indicated she was going to try to work her shift. She drove her first bus run, but discovered that the pushing and pulling involved with mov- ing the steering wheel aggravated her shoulder pain. After about one-and-a-half hours of driv- ing, she called the supervisor of operations to ask if he could get a replacement driver for her. One hour later, the supervisor informed her he had found a re- placement so Lorraine returned to the transit terminal. The supervisor assisted Lor- raine with completing a report of work injury and gave her some Workers' Safety and Insurance Board (WSIB) forms for her doc- tor to complete. However, the WSIB later rejected her claim for benefits due to insufficient evi- dence that a work-related injury had occurred. Lorraine went to a walk-in clinic after she left work, where a doctor examined her and, based on her description of the pain, di- agnosed a soft-tissue strain in her shoulder and neck. He completed a functional abilities form that stated she should avoid operating a bus for three to seven days and instead perform modified duties. After leaving the clinic, Lor- raine called a representative of the union — the Canadian Union of Public Employees (CUPE) — to see if the dinner and bowling night was still on. When the representa- tive confirmed it was, she drove to the restaurant and had dinner. Some friends convinced her to go to the bowling alley, even though she couldn't bowl because of her injury. She drove to the bowling alley after dinner. Once at the bowling alley, Lor- raine's friends said they wanted to meet her boyfriend, so she drove home — about 20 km away — showered and changed, and her boyfriend drove them back, where they stayed for about 30 minutes. Later, the organizers distrib- uted a flyer that included two pic- tures of Lorraine smiling at the event. On Nov. 29, the inspector on duty advised her that she was being suspended effective imme- diately, but he didn't know why. The city held a disciplinary meeting on Dec. 3, where it in- formed Lorraine she was receiv- ing a three-day suspension for cul- pable absenteeism because of the shift she didn't complete on Nov. 3. Culpable absenteeism was con- sidered a serious offence under the city's five-step progressive dis- cipline policy, so even though she was at step three in the policy, the city treated it as step five, which required a suspension without pay pending investigation. The suspension consisted of the three shifts she had already missed from her suspension pending investiga- tion. CUPE grieved the suspension, arguing Lorraine wasn't given any notice or reason for the suspen- sion at the time she was suspend- ed — which breached the collec- tive agreement — and she was legitimately injured when she cut short her shift. Arbitrator Brian Sheehan found the immediate suspen- sion pending investigation was automatic once the city advanced Lorraine to step five of the disci- plinary process. The policy also stipulated that if it was found Lor- raine didn't commit the offence, she would be reimbursed for loss of pay during the suspension al- ready served. In addition, Lor- raine was informed of the reason for suspension at the disciplinary meeting. The individual who in- formed her of the automatic sus- pension couldn't tell her the rea- son because he didn't know — he was performing an administrative function. In addition, the suspen- sion at that point was also admin- istrative, not disciplinary, so the city didn't violate the collective agreement, said Sheehan. Sheehan found that it was clear Lorraine was interested in the employee event, which was one of the reasons she initially asked to switch her Nov. 3 shift. This was also made clear when the first thing she did after leaving the walk-in clinic was to confirm the event was still on, and later when she left to get her boyfriend and came back. Each act on its own — driving to the buffet, driving home, coming back with her boy- friend, and mingling with friends at the bowling alley — may not have been inconsistent with her injury, but doing all those things in succession immediately after going to the clinic raised ques- tions as to her incapacitation, said Sheehan. The arbitrator also noted that proper adjustment of the air ride driver's seat on buses wouldn't place any undue pressure on a driver's joints. Lorraine acknowl- edged she had made the appropri- ate adjustments to her seat. Sheehan found the city had good reason to be suspicious of the seriousness of Lorraine's in- jury and her leaving work early be- fore going to the employee event was an act of culpable absentee- ism. CUPE's grievance was dis- missed. For more information see: • Greater Sudbury (City) and CUPE, Local 4705 (Lorraine), Re, 2016 CarswellOnt 10950 (Ont. Arb.). 7 Canadian HR Reporter, a Thomson Reuters business 2016 CANADIAN LABOUR REPORTER NEWS < Worker pg. 1 Bus driver's actions undermined injury claim: Arbitrator Photo: marino bocelli (Shutterstock)

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