Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2016 September 26, 2016 ARBITRATION AWARDS Gillard was not comfortable being asked by Wade to stand on an elevator bracket, while Wade drilled holes into the same brack- et. Gillard thought his role was potentially unsafe, so he exercised his right to refuse work. Wade was not happy because of increasing tensions between the workers, who typically would pair up for an installation job. The Corner Brook condomin- ium job was well behind schedule and this caused Wade to express his displeasure repeatedly with Gillard. During the incident, Gillard claimed Wade slammed down a drill, nearly striking him. Wade said he was frustrated with Gillard but did not intend to harm him. Gillard called Thyssenkrupp district manager Nina Price- Hussey to report what had hap- pened. International Union of Elevator Constructors represen- tative Ward Dicks called Gillard later and told him to stay away from the site. Gillard then flew home to St. John's. The following day, Gillard vis- ited Price-Hussey at the office to further detail what happened in Corner Brook. He told her about a series of 2014 incidents with Wade that coincided with his fa- ther being diagnosed with cancer, which eventually caused his death in May. He said his father's health and what he called harassment by Wade caused him to feel increas- ingly negative job stress. Gillard didn't report the alleged treat- ment at the time. But Wade and Gillard patched up their relationship and eventu- ally were able to work together. After the Jan. 20 incident, four other mechanics who had previ- ously worked with Gillard were asked whether or not they were willing to take on him as a helper. All four declined and said they were not comfortable with his level of skill or his "mood swings." Eastern Canada vice-president Peter Beerli sent an email on Jan. 26 to Dicks: "In followup to our conversation this morning, (Thyssenkrupp Elevator) will be terminating Mr. Gillard's employ- ment effective immediately due to his behavioural issues and work- related performance per written statements of employees that have worked with Bill over the years." But Beerli later said the let- ter was not a termination order, rather it was an attempt to get the investigation moved forward. Meanwhile, two probationary workers had been assigned to the Corner Brook installation, while union member Gillard remained off the job. On Jan. 29, Dicks filed a grievance. Beerli then directed Price-Hussey to "lay off the non- union guys and put Billy in to re- place him tomorrow," according to an email. Gillard returned to work, but not on a jobsite; instead, he filed binders in the company's office until Feb. 5, when he was laid off, with a promise of eventual return. On March 4, Beerli sent a letter to Dicks that said it would not ac- cept Gillard back to Thyssenkrupp because all the mechanics refused to work with him. It also cited his "confrontational" attitude and fail- ure to take instructions, among other negative reasons. "Forcing your members to work with Mr. Gillard and griev- ing ThyssenKrupp Limited is not a solution to a serious issue. Thys- senKrupp is obligated to provide our employees a violence- and harassment-free work environ- ment," according to the letter. On March 9, after learning the employer hired two probationary workers, Dicks again grieved the action. But "the employer's failure to complete the investigation of the grievor's harassment complaint, while at the same time relying on statements made by Mr. Wade as grounds not to recall the grievor to work, does not demonstrate a good faith analysis," said arbitra- tor James Oakley. The arbitrator also found fault with the company because it did not attempt to find another posi- tion for Gillard. "At the time the grievor was bypassed for employment, on March 9, 2015, the employer had not completed the investigation of the grievor's harassment com- plaint against Mr. Wade," said Oakley. The employer should not have relied solely on the mechanic's testimony without giving Gillard a chance to address the allegations, said Oakley. Gillard won his grievance, but the amount of compensation was not determined. Reference: ThyssenKrupp Elevator (Canada) and the International Union of Elevator Constructors, Local 125(A). James Oakley — arbitrator. Gregory Anthony, Ashley Savinov for the employer. David Goodland for the employee. March 1, 2016. Nursing home worker walks out of job interview A long-time nursing home worker thought she was the right candi- date for a promotion to activity co- ordinator. But during an interview, she abruptly walked out and im- mediately grieved her treatment. Carol Thibodeau was hired in 1986 at Tabusintac Nursing Home in Tabusintac, N.B., as a house- keeping worker. When a posting came up for an activity coordinator, Thibodeau and Amy Hill were the two inter- nal candidates selected for a Feb. 12, 2015, interview. The employer wanted to fill the position quickly as the current incumbent left the po- sition on short notice. Required prerequisites for the job were a grade 12 diploma, a driver's licence and a training pro- gram. At the time of the posting, Thibodeau had fulfilled none of these requirements. The home had previously in- stituted a grandfathering policy making all current workers grade 12-equivalent, even if they didn't achieve the diploma. Thibodeau knew about this policy and be- lieved her long service would sat- isfy the requirement. During the interview, Thibodeau reported "feeling in- timidated" as she was questioned But then she was taken aback after a question and "went blank." "(Director of nursing Linda) O'Shea (said) Thibodeau advised that she was 'going to her CUPE representative' and left. O'Shea at- tested to being 'surprised.' She said that Thibodeau never returned," said arbitrator Robert Breen. After Hill was announced as the new activity coordinator, Thibodeau filed a grievance stat- ing she had met the requirements and was the senior applicant. During a March 3 meeting, Thibodeau said she felt her 28 years "meant nothing." Meanwhile, the successful applicant Hill had a grade 12 di- ploma, a driver's learning permit and had enrolled in an Atlantic In- stitute on Aging training course. Her attendance record was sig- nificantly better than Thibodeau's who had booked multiple days off for health reasons. The union argued against the "arbitrary and unreasonable in- terview process" which provided undue hardship on Thibodeau. The employer said a higher level of skills required necessitated an interview. "Further, while it is not disputed that Thibodeau may have felt in- timidated by the interview pro- cess, this was no reason to walk out of the interview and to never come back, and to just file a griev- ance," said the employer. Thibodeau put the employer in an awkward position when she walked out, said the arbitrator. "Thibodeau left and never re- turned. The employer was left in a position to either conclude that there was no one qualified and to go outside to fill the job or to rea- sonably exercise its managements rights and appoint Hill, on the condition that she fulfil the iden- tified training program require- ments," said Breen. "I am satisfied that having re- viewed the testimony and the ex- hibits, there is no evidence at all that this employer acted in bad faith, arbitrarily or in a discrimi- natory manner in the posting or in the interview process that it rea- sonably chose to follow." Reference: Tabusintac Nursing Home and the Canadian Union Of Public Employees, Local 4796. Robert Breen — arbitrator. Sophie Noel for the employer. Mary Fougère for the employee. July 22, 2016. < Elevator pg. 1

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