Canadian Labour Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2016 September 12, 2016 ARBITRATION AWARDS 6 Canadian HR Reporter, a Thomson Reuters business 2016 She had been employed with the board since 2005, first as a casual worker and eventually be- coming a full-time custodian at Chatham-Kent Secondary School in 2010. On Nov. 5, 2015, Dodman was interviewed for the C3 position by supervisors Rick Tanner, and Jim Huff, her immediate supervisor. The interview consisted of eight questions about the can- didate's background and work history, with probing questions about what the worker had done in the past in certain situations. During one of the answers, Dodman used the phrase "couldn't lollygag" during a particular work incident, but one of the interview- ers wrote down that she said my "usual lollygag," which could be construed as detrimental to the candidate. She also used the words "bor- ing" and "mind-numbing" to de- scribe working conditions. These words were also written in the interview notes. She also indicated that she had been trained on the use of various floor cleaning machines, which was a requirement of the new job. One of the sessions was witnessed by Huff. Dodman's resumé indicated that she had worked at various times for the board as a C3 as well as a custodian 1 — which was even higher than C3 — for about three months. Dodman was scored on her an- swers to the questions on a five- point scale, with five indicating the person "greatly exceeds require- ments." The mid-range of three meant "fully meets requirements," and was the level a candidate had to reach to win the new job. Dodman was notified via email about 36 minutes after the inter- view started that she would not win the promotion. Tanner's assessment of Dod- man indicated he didn't think that she was a star performer. "(It) seems that she was not sure of the job - mind numbing and boring job - lollygag - doing the job - poor interview," he wrote on his notes. He also said they didn't talk about Dodman's experience with the various machines during the interview. Tanner said he asked Huff about the extent of her expe- rience. Huff 's comments on his notes indicated Dodman was "poor interview — said that she lolly- gagged and she felt her job was mind-numbing (and) boring." The two interviewers did not use the collective agreement stan- dard in reaching their decision, according to arbitrator Howard Snow. "I have been critical of the work of the two interviewers. They made a number of errors. But I do not think they bear full responsibil- ity for all the employer's mistakes," said Snow. The collective agreement spelled out the criteria for a work- er to be eligible for promotion. It stated that the worker must achieve a minimum score of three or "fully meets requirements," to get the promotion. Snow rescored Dodman's re- sponses and came up with an av- erage score of 3.25. Tanner and Huff both gave Dodman a two in each category. But the 3.25 scored, combined with her seniority over the other job candidate, should have given Dodman the edge. "I find the employer violated the collective agreement when it con- cluded the grievor did not meet the threshold standard in the col- lective agreement," said Snow. As for Dodman's ill-advised choice of words during the inter- view, it was given little credence. "The grievor's use in the inter- view of the words 'lollygag', 'bor- ing' and 'mind-numbing' has little if any impact on the question of whether the grievor had the neces- sary skill and ability to do the post- ed C3 job," said Snow. "I direct the employer to ap- point the grievor to the disputed position effective Nov. 9, 2015, along with back pay and any other compensation." Reference: Lambton Kent District School Board and the Canadian Union of Public Employees, Local 1238. Howard Snow — arbitrator. Dianne Jozefacki for the employer. Phillip Hunt for the employee. Aug. 12, 2016. Drug-dealing cook terminated from nursing home A former nursing home cook was terminated after being convicted of trafficking drugs. David Carroll had worked at the Miramichi Senior Citizens Home in New Brunswick since 1990 in various positions and was employed full-time since 2013 as a cook. Part of his job involved in- teracting with the residents. In 2013, Carroll was charged with various offences after po- lice found drugs in his home. He went through the legal system and eventually was sentenced to serve 30 months in prison. Carroll served 10 months. After he was sentenced, Car- roll's employment was terminated on June 5, 2014. "Your decision to live within the drug culture is not conducive to the mission of this nursing home. In fact, that culture is fraught with danger and can never be a part of who we are. We cannot run the risk of having you work here after being involved in such a lifestyle," said the termination letter. The administrator of the home, Jean Doyle, argued that because the Miramichi home deals with patients who suffer from demen- tia and it participates in various community outreach functions, it would be best not to have Carroll on staff because it would harm the reputation of the home. But the union argued that there was no harm to the home's stand- ing in the community because no evidence was ever provided. While Doyle agreed that no mem- bers of the staff had expressed misgivings about having Carroll employed, the board of directors didn't want him back in his job af- ter his jail time was served. However, this notion was dis- missed. "I am of the view that 'good character' is one of the legitimate standards called for in this senior's residential home. In my opinion, that good character stipulation in this community-based senior's health-care home is not met by a person who has pleaded guilty to the trafficking of hard drugs, and who, given prior drug involve- ment, called no evidence to coun- ter a likelihood of recidivism," said arbitrator Robert Breen. The home did conduct criminal checks on prospective employees, but Carroll's legal troubles sur- faced after he was hired. He was also convicted of drug possession in 2010, but served house arrest which did not affect his employ- ment. Carroll believed he would have been able to request a leave of ab- sence — as outlined in the collec- tive agreement — to serve his jail time and return to his position un- changed. But Doyle said a request never materialized. "There is no question arising of a written leave of absence request, there is none shown in evidence," said Breen. In rejecting the grievance, the arbitrator cited a lack of remorse from Carroll. "This is a case where I am also satisfied that this grievor has not even begun to understand the concern his employer might have with his conduct and the bond of trust between himself and that employer. His concern testified to is only with respect to himself," said Breen. "I am compelled to the unfor- tunate conclusion that in this case Carroll 'crossed the line.' This was not the possession or use of, or addiction to, soft drugs. This was a substantial involvement in the drug trafficking of hard drugs to make money. This ongoing activ- ity and the criminal conviction for this activity, in my view, does pose a substantial and serious concern for the safety interests and general reputation of this senior citizens' residential home." Reference: Miramichi Senior Citizens Home and the Canadian Union Of Public Employees, Local 1277. Robert Breen — arbitrator. Michael Keating for the employer. Mary Fougère for the employee. July 20, 2016. < Female pg. 1

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