Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2016 September 19, 2016 ARBITRATION AWARDS place and she accused Gorsalitz and Lovett of waging a vendetta against her after a petition was cir- culated criticizing another work- er's performance. After the petition become common knowledge, client care manager Allan Wong convened a meeting on April 22 to discuss it. He was surprised when Lovett brought up the issue of inappro- priate touching and he told her to contact the police if she believed it had happened. After the meeting, Gorsalitz spoke with Lovett and they dis- covered they were both con- cerned about unwanted touching from Mendoza. They decided to write a letter of complaint and present it to the union, the Alberta Union of Provincial Employees and the employer. The police were also contacted but after speaking with the Gor- salitz and Lovett, no charges were laid because of the unlikelihood of a successful prosecution. During the investigation, an- other worker complained of being touched by Mendoza. On May 9, Mendoza was again questioned about her actions and she again denied that touch- ing had happened, however, she "wished she knew who could say those things so she can say she's sorry," according to notes written by Stacey Hagkull, the employee relations administrator. Management decided to termi- nate Mendoza, arguing she should have known the behaviour was not appropriate. The face that she was an immi- grant was addressed, but she had been in Canada for seven years, so it was dismissed by Carewest as a mitigating factor. "Witnesses reported seeing you and experiencing you fre- quently touching other women's breast and chest area, frequent questioning about breasts, show- ing photos of yourself in linge- rie, and an incident in which you grabbed the crotch of a co-worker while she walked down the hall," said the termination letter, dated May 27, 2014. During a meeting, Mendoza said she wanted to say sorry, but she couldn't provide a reason for an apology. "Asked to explain why she wished to apologize, and to ex- plain what for, she said that she did not know she had hurt anyone's feelings and was sorry if she had," said arbitrator Andrew Sims. The union argued the employer rejected progressive discipline for what it characterized as actions that were "inappropriate in the workplace," but not sexual harass- ment. The union said firing Mendoza did not give her to chance to learn from her behaviour and potential- ly correct it. But Sims rejected the argu- ment: "(The touching) amounts to totally unacceptable interfer- ence with the personal integrity of three co-workers who are entitled to go about their duties free of such indignities." In rejecting the grievance, the arbitrator found nothing was un- earthed that would mitigate the penalty of termination. "It falls into that category of cases where the conduct, even for a first offence, presumptively justifies termination, with the em- ployee carrying the responsibility to put forward some reasonable basis for substituting a lesser pen- alty," said Sims. "The grievor has provided nothing beyond her prior meri- torious employment record to persuade us that a lesser penalty is warranted. In all the circum- stances, we find we must uphold the termination." Reference: Carewest George Boyack Nursing Home and the Alberta Union of Provincial Employees. Andrew Sims — arbitrator. Damon Bailey for the employer. Ralf Kuntzemann for the employee. May 16, 2016. Careless driving with tractor-trailer gets driver fired A driver with almost 30 years of experience was terminated after he recklessly drove his 18-wheeled transport truck too close to a fellow driver, who was standing outside his own rig. Outside a Brampton, Ont., Coca Cola facility around 9 p.m. Feb. 2, 2016, Alfred Troisi drove his truck too close to Ed Mascunana — who had just stepped out of his truck near the loading dock area — to re- move carbon dioxide placards. Marco Visco was also working that night and he witnessed Troisi making a sharp turn around Mas- cunana's truck, then revving the engine as he passed by. He said that Troisi was close enough for Mascunana to touch the truck. "(It was) not accidental; he had all the room in the world; it was on purpose," said Visco in a report to shift supervisor Scott Dunslow. Visco approached a "visibly dis- turbed" Mascunana and they took photos of the scene, including tire tread marks on the snowy, slushy yard made by Troisi's truck. Video evidence from the em- ployer showed the two trucks were close, but it was unclear ex- actly how much. Mascunana said he had to squeeze close to his trailer as Troi- si's truck was passing. "I was standing in front of my trailer removing the placard when he drove at high speed (and the truck was) two to three feet beside me; intentionally trying to hit me with the trailer," said an in- cident report. Troisi said that he didn't realize Mascunana was standing outside his truck. "I honestly didn't see him; I didn't see anyone there." But on cross-examination, Troisi claimed to have seen Mas- cunana go into Visco's truck be- fore he reached the tractor-trailer. And he also said he saw Mascu- nana go inside the plant. Troisi did acknowledge he may have been driving faster than the posted speed limit of 15 kilome- tres per hour, but he didn't check his speed. He said many drivers regularly breached the speed limit. The termination letter said Troisi violated the speed limit on a slushy surface, he didn't observe potential hazards surrounding his tractor-trailer and he should have been more aware of Mascunana. The Feb. 19 letter also fingered past discipline still on file, mean- ing Troisi should be fired "for cause" given his "past disciplinary history and the severity of his ac- tions as it pertains to a near-miss in the workplace." The union, Unifor, argued no clear evidence emerged that Troisi intentionally drove carelessly around the truck. It also said by re- lying solely on poor quality video footage and testimony from Mas- cunana and Visco, that shouldn't have been enough to see him fired. As well, the pair had a "known animius" toward Troisi, which coloured their descriptions of the event. Dunslow testified he was ap- proached by Troisi at the end of the shift Feb. 2 and asked whether a person could be charged for making a false accusation against someone. Dunslow was a retired detective with 30 years' law en- forcement experience, so Troisi probably knew he was a good source for legal questions. Troisi denied asking these questions. "In the result, I have concluded that the grievor did make his in- quiries of Mr. Dunslow before leaving the Brampton facility at the end of his Feb. 2 shift and that his asking about false accusations and the functioning of the cam- eras was some evidence of his ap- preciation of the facts that he had indeed driven so as to endanger Mr. Mascunana," said arbitrator Derek Rogers. The arbitrator also did not ac- cept the evidence of Troisi regard- ing his failure to see or at least be mindful of Mascunana beside his trailer to be at all credible. "He knew that Mr. Mascunana was on the ground at his vehicle when he started out." A lack of remorse also factored into the decision. "Mr. Troisi knew precisely what the allegations were and yet he did not offer any expression of regret for having caused another person to say that he had attempted to run him down," said Rogers. "I consider the grievor's behav- ior on Feb. 2, 2106, to have been akin to an assault and an act of workplace violence." Reference: Coca-Cola Refreshments Canada Company Brampton Plant and Unifor Local 973. Derek Rogers — arbitrator. Michael Smyth for the employer. Adam Beatty for the employee. Sept. 1, 2016. < Nursing pg. 1

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