Canadian Labour Reporter - sample

6 Canadian HR Reporter, a Thomson Reuters business 2016 October 17, 2016 ARBITRATION AWARDS When confronted by manage- ment during a meeting, Vaillan- court refused to say anything. She was given a formal suspension and asked to leave while the hospital conducted an investigation. Mari- lyn Bogle, patient care manager, and Laurette Sauer, human re- sources representative, retrieved the nurse's coat from inside the nursing station before she left the hospital. Sauer detected 23 gabapentin pills in Vaillancourt's coat pocket and discovered various 20 dollar bills adding up to roughly $500 in cash. However, she was not con- fronted with the potential theft of pills, which at that time were confirmed to come from the hos- pital's stock. Ten days later, another meeting was held and the nurse was again accused of theft. She again denied the allegations after meeting with a union representative for two hours prior to the meeting. Vaillancourt was given a termi- nation letter stating she was being fired for cause due to theft of nar- cotics, criminal misconduct while handling narcotics, gross violation of nursing standards and breach of trust. In May 2014, during one of many arbitration hearings be- fore arbitrator Norm Jesin, Vail- lancourt finally admitted to the thefts. But the employer's repre- sentative found the apology insin- cere. Finally, in 2015, Vaillancourt fully owned up to her workplace malfeasance and explained she was in treatment for an addiction to pills and alcohol after a 2011 finger injury. She further attested to diverting pills from patients since 2008. The thefts stemmed from a di- agnosis in 2006 of ADHD, which caused her daily anxiety. In arguing for Vaillancourt to get back her job, the union, On- tario Nurse's Association, said her medically established benzo- diazepine and opiate dependence meant she was protected under a disability clause from being ter- minated. "I am satisfied that not only does the grievor suffer from a dis- ability in the form of addiction, but I am also satisfied that the diversion of drugs by the grievor established by the employer and acknowledged by the grievor in her evidence, was connected to the addiction and would not have occurred but for the addiction," said Jesin. The arbitrator rejected the em- ployer's argument that Vaillan- court made the choice to continue to steal drugs and was not forced to do so by her addiction. "The disease of addiction is co- incident with chemical changes within the brain that make re- sistance to the urge to continue drug use extremely difficult. Fur- thermore, destructive behaviours such as theft, lying and dishonesty or often coincident with the dis- ease as the addict seeks to contin- ue the drug use," said Jesin. He ordered Vaillancourt re- instated with a long list of condi- tions including no abuse of any drug or alcohol, no access to any controlled substance while on the job, submitting to urine testing when drug use is suspected and continuing to be treated for addic- tion. The conditions were to last for 60 months. Reference: Sunnybrook Health Sciences Centre and the Ontario Nurses' Association. Norm Jesin — arbitrator. Brian Smeenk, Ken Bennett, Marc Rodrigue for the employer. Sandy Donaldson for the employee. Sept. 26, 2016. City didn't offer temporary worker bumping rights Steven Salvador was a temporary worker at the City of Toronto since 2008, who regularly partici- pated in yearly work assignments for the city. But in 2013, he was not offered a job as a driver due to his em- ployer's decision to restrict which workers were offered various open positions. Piotr Kozak was part of a group who was offered assignments during an August session, even though he had less seniority than Salvador. The city maintained it would be unwieldy to offer all open posi- tions to the entire pool, so staff re- viewed the various numbers and made decisions on who to invite for the bumping session. Salvador was not invited to the August 2013 session . The city typically had as many as 1,000 employees eligible each summer but it decided to restrict the invitees to fill the 100 to 150 available positions. The offers were based on what temporary worker assignments were near the end and who would be most amenable to accepting a newer assignment. Further complicating the issue was the fact that two positions (driver loader and recycling oper- ator) were being merged into one position moving forward (solid waste collection operator). The situation meant 10 workers would not be considered for the new position, even though they should have been. The union, CUPE local 416, grieved this on behalf of two other workers. A settlement was reached and the city began steps to fix the mixup by contacting workers who should have been given the oppor- tunity to bump junior employees. Kozak was identified as one of the workers affected and to miti- gate the potential damage done to him, he was given a bumping op- portunity for an assignment last- ing from Dec. 11, 2013, to March 11, 2014. At the same time, Salvador ac- cepted a bumping for a job at the same yard as Kozak that only ran until Jan. 31, 2014. After he was laid off, he discov- ered Kozak was still working at the Ellesmere yard at a position that Salvador was qualified to accept. The city argued that workers in this process sometimes miss out on bumping opportunities due to scheduling: If a worker accepts an assignment, she is expected to complete the entire term and not drop out when another assign- ment comes up, even though, be- cause of seniority rights, the offer could have been extended. The city showed a list of 12 workers who would have been eli- gible for the position in question, had they been offered the assign- ment. All 12 were senior to Salva- dor. The union countered despite the scheduling difficulties faced by the employer, it has no right to offer bumping rights to a junior worker over a worker with more seniority. By offering the position to Kozak, without considering Salvador, the city breached the collective agreement. But arbitrator Gail Misra up- held the grievance. "In this case, based on the evi- dence, the grievor, who was a tem- porary employee in a seasonal- work opportunity, was not given the chance to exercise his senior- ity in August 2013." The city was ordered to re- instate Salvador's seniority and compensate him for lost wages. "The parties had agreed on ex- plicit language that required that temporary employees in seasonal work opportunities had to be giv- en the chance to exercise their se- niority in August each year. While the city was free to devise what- ever system it wanted to ensure that happened, it did not have the discretion to do other than ensure that there was a process that com- plied with the collective agree- ment language," said Misra. "The city used a process that did not give the grievor the oppor- tunity to exercise his seniority at all in August 2013. It unilaterally decided to only invite about 152 people to participate in the 2013 layoff and bumping process," said Misra. Reference: City of Toronto and Toronto Civic Employees' Union, Local 416. Gail Misra — arbitrator. Justin Basinger for the employer. James K. McDonald, Ryan Nevell for the employee. Sept. 24, 2016. < Stealing pg. 1

• Cover