Canadian Labour Reporter - sample

8 Canadian HR Reporter, a Thomson Reuters business 2016 October 3, 2016 ARBITRATION AWARDS sluggish on the night shifts due to unstable sleeping patterns. She asked management to switch her to a permanent day shift, so she could establish a more regiment- ed sleep schedule. But the hospital denied the re- quest. During the 30 months of hear- ing on the arbitration case, Tang alleviated the effects of night shift work by working mostly day shifts, using vacation time to avoid night shifts, and by switch- ing shifts with other nurses. The hospital argued that there was no evidence provided by vari- ous doctors that indicated Tang needed this specific accommoda- tion to address her disability. The hospital took issue with one physician, who it alleged was not fulfilling his proper obliga- tions as a doctor. "The hospital further said that Dr. (Celeste ) Thirwell had crossed the line between the legit- imate role of a treating physician and had become an advocate for the grievor," said arbitrator John McNamee. "The responses from Dr. Thirwell were less than clear, and were often phrased in generalities as to the possible impacts of fibro- myalgia instead of relating to the grievor's condition." Thirwell was the director of the Centre for Sleep and Chronobiol- ogy Sleep Disorder Clinics and had treated Tang since 2012. The hospital further argued that Tang's true motivation was to better concentrate on finishing a part-time masters' degree in nurs- ing at the University of Toronto. It alleged she wanted nights free to attend classes. Tang did suffer from "constant pain" and "fibromyalgia-related sleep disorders had an adverse ef- fect upon her ability to perform the essential duties of her job," said McNamee. She had taken sick leave in 2011 and 2012, activating the hospital's attendance management pro- gram. Taking into account testimony from Thirwell and Mary Lee — who had also been treating Tang — the arbitrator agreed more fully with the latter. "Accordingly, I prefer the opin- ion of Dr. Lee to the effect that it made no real difference as to whether the grievor had a consis- tent night shift work schedule or a consistent day shift work sched- ule. I had no reason to suspect that her opinion was influenced by anything other than straight- forward medical concerns," said McNamee. The grievance was dismissed partly due to Tang's own words. "She clearly testified that she was able to function normally when she took sleeping pills and that her sleep disorder was not a factor," said McNamee. "I am satisfied that the grievor can be accommodated, if she desires accommodation, with a steady night shift work schedule, and that the hospital was justified in its refusal to provide her with a permanent day shift schedule." Tang's grievance was dismissed by the arbitrator. Reference: The University Health Network and Ontario Nurses' Association. John McNamee — arbitrator. Andrew Zinman for the employer. Marcia Barry for the employee. Sept. 9, 2016. Worker injured on the job, leaves site, is terminated A millwright working in a plant in Newfoundland and Labrador hurt his shoulder on the job, but when he asked to go home because he couldn't work anymore, it was de- nied. Aaron White then left his job site anyway and went to a doctor, who diagnosed him with an injury and recommended he miss three to seven days of work to heal. But on Oct. 6, 2015, White was given a termination notice stating "employee left work early without permission" on Sept. 29. "Following the infraction hand- ed to you on Oct. 2, 2015, and after seriously considering your past personal file, your past conduct and your behaviour, the following disciplinary action has been de- cided, 'you are discharged,'" said the letter. An earlier incident on Dec. 10, 2014, had caused White to receive an infraction notice. Lyle John- son, his supervisor, assigned a job of servicing a rougher pump that Johnson said White had complet- ed previously at least 20 times. White was provided with a job pack during the morning safety briefing, that included a list of safety needs, a form that needed to be filled out when the work was done and personal protective is- sues and overal l safety issues for the specific task. But on that day, White insisted he needed to perform a job hazard analysis form before he did the work. When that request was denied, White went to the plant office to file a grievance. He needed to see a copy of the collective agreement, so he could refer to the proper clause. Johnson ordered White to re- turn to his job site three times that day, as he said neither a job hazard form or standard operating proce- dure document would be needed to complete the task. Each time, White refused. The supervisor noted White hadn't completed any work on the pump two hours after the shift had started at 8 a.m. After the infraction report was issued, White was given a two-day suspension, which was called for in the progressive discipline area of the collective agreement. The next incident that lead to the termination took place on Sept. 29, 2015. White hurt his shoulder using a wrench during a shift and im- mediately went to the on-site first aid clinic. He was examined by registered nurse Guylaine Cyr and given two different types of pills to treat the injury. After applying ice and installing a bandage, Cyr advised White to return to work and perform only light duty. He was told to avoid any heavy lifting, pulling or push- ing of any equipment. Andrew Cabot, his supervisor at the time, told him to perform light sweeping around the plant. White later returned to the nurse complaining of further pain and said he couldn't even do light duty work. But he was again told not to leave the job site. Cyr told White that if he left without approval from his super- visor, she would have to report it. The following day, Cyr received a report from a hospital, which surprised her because White said he was going home. When maintenance superin- tendent David Combden heard about this incident, he reviewed White's discipline history, which included verbal, written warnings and two suspensions. Following the progressive disci- pline policy, White was suspend- ed again, then terminated seven days later. Arbitrator James Oakley issued a split decision. The grievance for the initial two-day suspension was upheld. "(White) did not have a justifi- cation based on safety procedures not to follow the request made by Mr. Johnson on the first two occa- sions," said Oakley. "However, if he was concerned about following the correct proce- dure, then he would have been ex- pected to have made the request for an (standard operating pro- cedure) or help with a (job haz- ard anaylsis) earlier that morning when he was assigned the task, and not in response to Mr. John- son's third request to go back to his work area," said Oakley. "The employer had just cause to issue the infraction report and im- pose discipline for lack of applica- tion to the job." But on the more important is- sue, Oakley found the punish- ment for White leaving the job site was too harsh and he ordered him reinstated, but with a suspension without pay and a final warning. "The mitigating factors include the fact that the grievor was in- jured at work and subsequently obtained a medical certificate ap- proving a leave of absence on the day he left work. It is appropriate to modify the penalty and rein- state the grievor," said Oakley. Reference: Iron Ore Company of Canada and United Steelworkers, Local 5795. James Oakley — arbitrator. Darren Stratton for the employer. Lawrence McKay for the employee. May 25, 2016. < Nurse pg. 1

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