Canadian Labour Reporter - sample

8 Canadian HR Reporter, a Thomson Reuters business 2016 August 1, 2016 ARBITRATION AWARDS Work (FSW) form that must be signed by a doctor to explain an absence. It was supposed to "provide a framework for responding to ex- cessive absenteeism; to provide support and guidance to assist employees who have high absen- teeism," said Sunnybrook. But Service Employees In- ternational Union (SEIU) Local 1grieved the new plan, saying it was "unreasonable" and it could "unduly infringe upon the person- al privacy of employees." The union argued that the FSW form may trigger an invasion of an employee's privacy by asking spe- cific questions of that employee's doctor, calling it "overbroad, over- reaching and unreasonable." SEIU said demanding answers from physicians would interfere with the sacred doctor-patient rela- tionship and may adversely affect a worker's treatment plan. But the hospital argued consul- tations with doctors could benefit employees with earlier fulfillment of sick pay or accommodating the illness and ensure that "everything is being done" on their behalf. But asking for specifics details from a doctor about a patient's treatment — especially before no- tifying the employee — was unac- ceptable, said Knopf. "Seeking such information and offering such interventions goes beyond what is considered per- missible, without the patient's consent." In some cases, an employee may request assistance from an occupational health and safety (OHS) department when deal- ing with an illness and it would be beneficial for information about treatment to be shared, she said — but it must come from that em- ployee's request. The arbitrator took issue with consent as stated on the FSW form: "For the consent to be meaningful, the employee should be advised that additional infor- mation is being requested and why it is being requested before the doctor is contacted directly. That will allow the employees to revoke their consent 'in writing' if they so choose. To advise employ- ees after the fact makes the ability to revoke the consent academic." Knopf ordered the wording to be amended to include the provi- sion that the employee would be advised in advance of a request for information from a doctor. The current implementation of FSW "goes beyond the bounds of reasonableness," she said. "The case law is clear that an employer steps over the bounds of propriety and reasonableness when it attempts to engage in the private relationship between an employee and his/her physician." Knopf ordered changes to be made to the wording so that only general information was received from the doctor, not specifics about a course of treatment. The union also argued that absences that were mandated by hospital policy (such as a sore throat, aches and pains or fever) must not be used to consider a worker as triggering the absentee- ism policy. Thresholds to trigger atten- dance counseling meetings were: absenteeism in excess of three in- cidents or 45 hours in a six-month period for full-time employees; absenteeism of three incidents in a six-month period for part-time employees. The union argued getting placed into the program was easi- er than being removed, which was unfair to workers. However, the arbitrator ruled that other ASP programs offer similar inconsis- tencies and have been accepted into case law. This part of the grievance was rejected. The arbitrator also said some parts of the FSW form that asked for specifics should be treated with employee-patient privacy re- maining paramount. "In all situations, the manage- rial discretion should be exercised to seek the minimum information necessary to objectively verify the legitimacy of the absence," she said. Reference: Sunnybrook Health Sciences Centre and Service Employees International Union, Local 1 Canada. Paula Knopf — arbitrator. Brian Smeenk for the employer. Aleisha Stevens for the union. July 13, 2016. Grocery firing upheld after months of harassment Pornographic photos, inappro- priate touching, sexualized com- ments and vulgar nicknames were all reasons not to approve a Cal- gary grocery store supervisor's grievance, after he was fired. Arbitrator Alan Beattie re- jected the firing as excessive in his decision and said, "It is hard to fathom what perverse pleasure a 51-year-old supervisor could get out of shocking and disgust- ing two young females who could, given their ages, be his daughters." The case detailed Brad Bannis- ter's continuing actions against two 25- and 21-year-old clerks, while he acted as supervisor of a Co-op produce department. Both witnesses reported sepa- rate incidents of harassment that went on for months but in Decem- ber 2014 during a conversation, each woman realized that Ban- nister had treated them inappro- priately. Many times, the manager tried to adjust name tags located on the workers' chest. He was told repeatedly not to continue the ac- tions but he persisted. The manager also poked each woman in the breast with his pen, on a few occasions. The harassment also included a nude photo, sent via cell phone to both witnesses, that showed the manager naked in the shower. Bannister also displayed porno- graphic images of himself and his fiancée, now his wife, having sex. The manager repeately dis- played various photos that were highly inappropriate at work. The woman also reported at least five vulgar nicknames the manager used, repeating them out loud in the produce department, sometimes in front of customers. Bannister's said he thought the women didn't mind sexually- charged language. Both women spent time with him and his fian- cée at their home and at various public events during the time of the actions. "I find it difficult to understand why we are having this conversa- tion when it was all in a fun and joking manner and was complete- ly mutual and consensual," he said. The grievor's conduct consti- tuted serious sexual harassment, said Beattie. "His evidence was not credible to an extraordinary extent and he expressed no apology or remorse (until the hearing). The com- plainants' reluctance to confront the grievor and come forward with their complaint is common and understandable. The grievor ought to have known his conduct was totally unacceptable. Any friendship which had existed had ended after the first offensive inci- dent of misconduct occurred and was no excuse for sexually harass- ing the complainants." Lack of credibility was critical in this case, which "in itself, par- ticularly if it is regarding signifi- cant issues, generally leads to the dismissal of a grievance." Bannis- ter was "evasive, not forthright, inconsistent, deflecting" in inter- views, said Beattie. "By the time he got to the hear- ing, and recognized the extent of the case against him and that he had better be more forthright, he was more candid, but what he may have gained in that respect was undermined by his continuing attribution of blame to the com- plainants and his unfounded alle- gations of the complainants being motivated by retaliation. In the final analysis, I have to conclude, that he still does not fully get it." Beattie said there were no miti- gating circumstances beyond Bannister's nine-year employ- ment. "His egregious conduct with young, vulnerable females who were under his supervision, and about which he was not (before the hearing) prepared to apolo- gize or express any remorse, de- mands that his employment be terminated." Reference: Calgary Co-Operative Association and the Union of Calgary Co-Operative Employees. Alan Beattie — arbi- trator. Thomas Ross, Alison Adam for the employer. William Johnson, Roxane Jangi for the union. June 26, 2016. < Sunnybrook pg. 1

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