Canadian Labour Reporter - sample

8 Canadian HR Reporter, a Thomson Reuters business 2016 August 15, 2016 ARBITRATION AWARDS ent allegedly threatened Ouellette. Police were called, but no further action was taken. Later when Ouellette's supervisor, Nancy Boutcher, spoke to that client, she was told that Ouellette had made fun of him. The next month, two other clients complained of abusive language from Ouellette. One of those clients was also the subject of another violent incident report. When a fourth client com- plained about Ouelette, Boutcher decided to escalate the situation by contacting her supervisor. Boutcher's management style was to coach workers regularly rather than document a discipline plan, but she felt the need to escalate at that time with WorkSafe's director of human resources, identified as "SD" in the arbitration decision. This was quickly followed by another incident. "On Feb. 9, 2015, Jocelyn Ouel- lette revealed that he had made an inappropriate remark to one of his clients. The comments, as indicat- ed in his termination letter, were to the effect 'Do you think your em- ployer is going to pay a little negro to follow you around?'" Immediately after this state- ment, Ouellette apologized to his superior. A June 1, 2015, disciplin- ary letter from Boutcherdetailed the various complaints received, with one saying, he "fait des men- aces" or made threats, as well as mocked at or laughed at clients. "Further, I have observed hostil- ity in the way you speak about the claims you manage and I question your ability (to) make unbiased and fair case management deci- sions," Boutcher wrote. Sensitivity training was dis- cussed during a meeting and Ouellette agreed his demeanour had to change. However, the matter was then raised with the WorkSafe CEO, identified as "GA," and a decision to terminate his employment was made. Oulette was terminated June 8 with cause, but cause was removed in November 2015 as the reason for dismissal. Ouellette grieved the matter (as a non-unionized public servant), 10 months' severance was then paid to him in November. The employer used this as evidence of "reasonable notice." When he met with the vice pres- ident identified as ShD, Ouellette said he didn't realize the situation was so dire, and that he could be terminated. He said he should have been given a warning letter, but none was given. Ouellette was also concerned that the racist comment incident was repeatedly referenced by Boutcher, and it was "blown out of proportion." The employer argued that the reason it removed the cause rea- son was so the four complainants, who were injured workers, would not have to testify and be put into an adversarial position. The cause letter stated, "It is clear to us that you are a continued risk to our business and reputation and you cannot provide our clients with fair and unbiased case man- agement." Arbitrator Guy Couturier dis- agreed and ordered Ouellette re- instated. "I am satisfied based on the ex- hibits referred to above, as well as the testimony of the employer's witnesses, that Jocelyn Ouellette's discharge was grounded upon 'cause.' The evidence establishes a prima facie case of discharge for 'cause'." "In my view, once the grievor challenged the grounds for the employer's dismissal, by present- ing a grievance under section 100.1(2) of the Public Service La- bour Relations Act (PSLRA), this gesture crystallized the issue," said the arbitrator. "The evidence is that the em- ployer did nothing concerning the comments, in the form of repri- mand, discipline or corrective ac- tions following Feb. 9, 2015. Noth- ing came of it until June 1, 2015. Ms. Boutcher had notified her superior, ShD, of the incident fol- lowing Feb. 9. It was done however in a man- ner that the grievor was not per- sonally identified. It would have been reasonable to direct the grievor to undergo sensitivity training at that time. It may have contributed and perhaps avoided his later communication problems with the other clients, who eventu- ally raised concerns," saidthe arbi- trator. In making his decision, cause was confirmed as the reason for termination. But Couturier attached con- ditions. "Jocelyn Ouellette is or- dered reinstated to his former po- sition as senior case manager with WorkSafe, effective June 8, 2015. He is not however to assume ac- tive or unsupervised case manage- ment until he has been provided by WorkSafe at its costs, and has successfully completed, training focused on sensitivity of the public that WorkSafe does serve and has further successfully completed training, or coaching, on how to effectively communicate with as- signed clients." References: WorkSafe NB and Jocelyn Ouellette. Arbitrator — Guy Couturier. André Richard for the employer, Daniel Leger and Dominic Caron for the employee. April 26, 2016. Inaccurate pension premiums don't have to repaid An arbitrator has ordered an X- ray technician's pension benefits be returned to the worker, despite years of "self-editing" timesheets at a higher rate of pay. Deborah Sharpe worked at Central Health in St. John's, NL. Between March 9, 2009, to May 15, 2013, Sharpe was classified as an LX-25 technician, but entered biweekly pay records at an LX-28 level, thus increasing her pension. In a termination letter May 2013, Central Health wrote, "the employer has no alternative but to view your actions as intent to de- fraud the employer of salary/wag- es you are not entitled to... You will be required to repay the amount of salary overpayment made to you since March 2, 2009." The worker was supposed to be paid at the LX-25 rate, but because she fulfilled the duties of an LX- 28 employee, she was paid at that higher rate and was able to make higher pension payments. Sharpe also periodically replaced the LX- 28 worker when he was away. The worker's time sheets were approved and signed by her super- visor, Gloria Bath, first manually as paper time sheets, then after a sys- tems upgrade, digitally. A July 4, 2014, mediation re- instated Sharpe, but with some conditions. She was ordered to pay back $33,390 from the retroactive entitlement, as well as employ- ment insurance premiums. The employer requested the pension department make an adjustment to the employee's pensionable earnings to reflect a lower rate of pay. An overpayment cheque of $2,381.98 was issued. The annual pension earn- ings difference between the rates would have been $2,399.90. But neither the employee nor the union knew about this request. Arbitrator Wayne Thistle wrote that the employer should have no- tified Sharpe and the union about the issue, but it didn't. The issue was during the time Sharpe was unemployed from May 15, 2013 to Sept. 7, 2014, where she should have to pay her 50 per cent share of insurance pre- miums. "The grievor paid for personal insurance during the period she had been terminated. It would be unreasonable and likely ineffec- tive for her to make retroactive payments since she would already have claimed through her per- sonal insurance should she have had any claims during that period," said the arbitrator. He ordered Central Health to "revert the grievor's pensionable earnings from March 9, 2009, to May 15, 2013, to the rate of LX-28, which would be as they initially were prior to the employer in- structing the Pensions Division to amend them in September 2013 to the lower rate of pay at LX-25." References: Central Regional Integrated Health Authority and Newfoundland and Labrador Association of Public and Private Employees. Arbitrator — Wayne Thistle. Raelene Lee for the employer. Christina Kennedy for the union. April 5, 2016. < Cause pg. 1

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