Canadian Labour Reporter - sample

6 Canadian HR Reporter, a Thomson Reuters business 2016 October 31, 2016 ARBITRATION AWARDS vice-president heard about the test results, he ordered Petra- schuk to be terminated. On May 21, 2012, Petraschuk was part of a three-person crew working above a trench eight- or nine-feet deep. Shane Moore was standing at the bottom of the trench when he passed a grinder guard up to Petraschuk to replace it, as Moore could not do so in the tight confines of the trench. When attempting to dislodge the grinder guard, Petraschuk suddenly fell into the trench on top of Moore. Both immediately left the trench to shake off the incident. An incident report was prepared and Petraschuk continued work- ing for the rest of the day. Moore sustained minor back and neck injuries as a result of the incident and was put on modified work duties. At the end of the shift, Petra- schuk was given a drug test and it came back indicating a positive result. He was advised to take a few days off and speak with a sub- stance abuse professional about why he had been using marijuana recreationally. On June 18, Petraschuk was ter- minated. The union argued that a drug and alcohol policy was added to the collective agreement unilat- erally in 2010 and it was not ap- proved by the union. It said the vague wording calling for post- incident testing constituted a constant threat of random testing, which had been rejected by the Supreme Court of Canada. As well, the union said because a full investigation as to possible causes of the incident was not completed, it was unfair of the employer to jump straight to a test. It said the test request was an assault on Petraschuk's privacy rights. And the fact Petraschuk fin- ished the shift and operated a backhoe to fill in the trench meant that Epcor had no reason to be- lieve he was intoxicated in any way. In rejecting the union's argu- ment that the amended policy was not agreed to by the union, arbitra- tor David Tettensor said the col- lective agreement plainly states the employer and the union agreed to the amended memorandum. "There was no evidence intro- duced to support an argument that the language is ambiguous," said Tettensor . Susan Ancel, director of water distribution and transmission at Epcor, was the supervisor who or- dered the drug test to be adminis- tered. Tettensor ruled the circum- stances of the incident constituted a reasonable assumption of pos- sible intoxication. "Ancel reasonably concluded that the act of the griever kneeling at the top of the trench and put- ting pressure on the equipment over the side of the trench was an act that contributed to the inci- dent. In these circumstances, it was reasonable to conclude it was necessary to move to the next step and explore whether this incident was caused by the grievor's im- pairment," said Tettensor . But the decision to terminate was too harsh. "While I accept the employer must foster, sustain and monitor a safe work environment, I am not satisfied that it is reason- able to apply a zero-tolerance ap- proach to all cases involving rec- reational use, regardless of other circumstances," h e said. The grievance was upheld as Tettensor ruled the employer- employee relationship was not permanently damaged and Pe- traschuk was entitled to return to work for Epcor. "I believe the grievor under- stands he made a serious mis- take and like the substance abuse professional, I believe he under- stands what is necessary to work in a safety-sensitive position with the employer. I am also of the view that discipline short of termina- tion could provide effective de- terrence." Reference: Epcor Utilities and Canadian Union Of Public Employees, Local 30. David Tettensor — arbitrator. Craig Neuman for the employer. John Carpenter for the employee. Sept. 5, 2016. Airline workers' 'no-evidence' motion rejected Four employees of United Airlines in Vancouver were terminated due to unethically benefiting from the company's fare system. An Dec. 16, 2010 anonymous email alleged Jennifer Thacker and Tony Scott, were overdoing it with the company's "waivers and favours rule" whereby an employ- ee can purchase airline tickets for friends and family at a discount. Senior investigator with corpo- rate security Salvato-Pinto began an investigation into the allega- tions.The investigation brought to light one ticket purchased Dec. 31, 2008, by Thacker from Van- couver to San Francisco. It was scheduled to depart Jan. 14, 2009, but it was then changed to Jan. 13, which meant the 14-day advance purchase discount was no longer in force. It was also re-routed to Chicago, then to Las Vegas. The ticket was modified twice in a two-week period, but no fees were charged. Another flight booked for Scott's parents included a 20 per cent employee discount. Again, it was modified and no extra fees were charged and the employee discount remained intact. In all, 63 violations of the rule were discovered by Salvato-Pinto. In the collective agreement under the heading "rules of con- duct for (International Associa- tion of Machinists and Aerospace Workers) IAMAW-represented employees," it stated violations of certain rules may result in dis- charge. One of the rules calls for no "inappropriate waiving of a fare rule or restriction." In February 2011, the employ- ees were all interviewed about their actions. Seven were inter- viewed, but three were found to have committed no violations. Ada Li, another employee, was found to have conducted 31 trans- actions that waived fees. Scott was questioned about 13 transactions, including one for Thacker. Kat- erina Sliacky was grilled over 10 transactions. Finally, Thacker was probed about 29 airline ticket transac- tions. One of the reinstated workers, identified only as "M.R.," said she felt "pressured" by Thacker, Sli- acky and Li not to add the differ- ences in fees and service costs on various ticket purchases. In dismissing the four workers, a June 2011 letter from Vancouver manager Nigel Newsome read, in part, "Tickets were purchased, and then subsequently the flights were changed to different dates, to higher and more expensive book- ing codes, with no collection of the fare increase due to the company. Further, change fees were waived." The four workers filed a "no evidence" motion alleging previ- ous testimony from Salvato-Pinto "amounts to hearsay — double, triple, quadruple hearsay. They were not business records." But United countered the "no evidence" motion by saying hear- say was acceptable in arbitration. Arbitrator Stan Lanyon agreed and he also ruled printouts pro- duced during the investigation were to be considered valid busi- ness documents. "These ticket transactions are records that were written, recorded and stored, contemporaneously with the events they described, and in United's ordinary course of its business. During the investigation, they were reproduced and printed." In the motion, the employees argued United in effect accused them of committing fraud, which is a serious crime and therefore standards of evidence were not suf- ficient to initiate a termination. But the employees were fired because of a violation of a rule, not fraud. "The grievors' termina- tions were based on the violation of rule two (that) prohibits em- ployees from deviating from the established rules and procedures with respect to providing travel services for themselves, their family and friends, and their co- workers." The four ex-employees were advised to return for a future hearing. "The grievors have the ability to re-argue the issues they have raised in their no-evidence motion," said Lanyon. Reference: United Airlines and IAMAW, District Lodge 140. Stan Lanyon — arbitrator. Shane Todd, Eric Mennel for the employer. Tania Canniff for the employee. Sept. 12, 2016. < Edmonton pg. 1

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