Canadian Labour Reporter

December 5, 2016

Canadian Labour Reporter is the trusted source of information for labour relations professionals. Published weekly, it features news, details on collective agreements and arbitration summaries to help you stay on top of the changing landscape.

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8 Canadian HR Reporter, a Thomson Reuters business 2016 December 5, 2016 ARBITRATION AWARDS 24 incident whereby McWatch told a colleague, identified only as "SR," that she was an "old bag", a "useless b---h" and a "f---ing c--t." McWatch also manipulated a wood plank strapping machine back and forth a number of times, as SR worked on a bundle of wood. Three times, she tried to attach a sticker with a stapler and each time it was moved by McWatch as she got closer. Eventually, she pushed the emergency stop but- ton on the machine to end the dangerous behaviour. After the incident, nothing further happened and they con- tinued working together on the strapping machine for the rest of the shift. McWatch testified he was an- gry at SR for taking too long to return to work after lunch and he was only trying to annoy her, not harm her. "No way I wanted to hurt this woman, she just made me mad and I wanted to frustrate her," he said. He also claimed he had been suffering from stress ever since discovering his grandmother was suffering from a case of terminal cancer, which claimed her life in August 2016, and this was affect- ing his worklife. McWatch was a member of the local Brunswick House First Nation, and he was also going through the breakup of his moth- er and stepfather. The genesis of the strapping machine incident began earlier that week on Monday, June 10, ac- cording to McWatch. He said he overheard SR in the lunchroom speaking in French (which he understood) about his status as merely that of a temporary em- ployee who shouldn't be allowed to vote on an issue about overtime shifts. He said nothing to SR at the time, but the ill feelings percolated all week, culminating with the Fri- day happening. The termination was made offi- cial Monday, after a meeting with management. It was grieved by the United Steelworkers, on the grounds of it being overly harsh, considering the mitigating circumstances. As well, McWatch was remorseful and apologetic after being con- fronted about his behaviour, offer- ing to personally apologize to SR. Arbitrator Kim Bernhardt ruled in favour of reinstating Mc- Watch, with time off without pay acting as a reasonable punish- ment. "These remarks are totally unacceptable, breach workplace and legislative requirements, and warrant censure and corrective measures." The worker was also having trouble to adjusting after losing his first "real job," according to Bernhardt. "The grievor has not found other employment since being terminated and might have to leave his family (whom he is close to) and community to find com- parable employment. Although the impact of the incident on those involved might be relevant in assessing the magnitude of the offence, in this case, it is not the most critical of the considerations as there are ways for the employer to re-establish a healthy working environment." McWatch's quick acceptance of the wrongdoing and his insistence that his actions were "out of char- acter" also mitigated the damage, according to Bernhardt. "If it were not for the grievor's truthfulness and acceptance of the responsibility for his behav- iour, I would have upheld the ter- mination," said Bernhardt. "However, as I have found that it is unlikely that the grievor would engage in such misbehav- iour in the future, he is to be given another chance at resuming his career with Tembec," said Bern- hardt. Reference: Tembec Enterprises and United Steelworkers, Local 1-2010. Kim Bernhardt — arbitrator. Michelle Henry for the employer. James Fyshe for the employee. Nov. 9, 2016. Coca-Cola employee threatens colleague with knife A forklift driver at a Brampton, Ont., Coca-Cola processing plant was terminated for exposing a knife during a discussion with an- other worker. Roal Richards was first hired in 1998, but on Jan. 28, 2015, he ap- proached Stephen McHugh and asked if he had any money with him. McHugh said Richards was holding a two- to three-inch blade in his hand while the conversation happened, which made him very anxious, even though he later tes- tified he didn't believe that Rich- ards intended him any harm. The following day, union stew- ard Robert Fagan brought up the incident to Byron Anderson, the warehouse manager. Anderson then told McHugh to go home as he was concerned about his safety. Anderson also interviewed two witnesses to the brief conversa- tion. Afterward, Anderson told Richards to go to the cafeteria and await his return. He went to find a union steward on duty so he could question Richards in his presence, as the collective agreement di- rected. But Richards went home at the end of his shift and no further con- versation happened that day. The next day, a woman called into the office and said Richards was feeling depressed and would be staying home. Anderson called back and ad- vised the woman that Richards should remain at home pending further notice. During the subsequent investi- gation, the employer had trouble connecting with a key witness who repeatedly requested a post- ponement of an interview before finally making himself available on Feb. 18. On Feb. 19, the company ter- minated Richards via a letter for "threatening to use a knife to in- flict harm on a colleague." Unifor Local 973 grieved the action and argued the company waited too long to impose disci- pline, which violated the collec- tive agreement that mandated 10 working days was the time period for any actions to be taken. The company countered and said the time limit began only when its investigation was com- pleted. As well, it requested an exten- sion on Feb. 10 but for some rea- son the union didn't respond to the request. The union also took offence to the discipline that was imposed upon Richards which it said did not happen in the presence of a union representative, also a stipu- lation in the collective agreement. But the company argued that by informing Richards to stay at home while the investigation pro- ceeded, it was not a disciplinary suspension, so no representation was required. "By imposing a suspension on the grievor in this case without affording him the right to union representation the employer did indeed violate (the collective agreement)," said arbitrator Norm Jesin. "It has long been accepted that where a collective agreement pro- vides an employee with represen- tation rights during the disciplin- ary process, the failure to grant those rights will render resulting discipline null and void." He ordered the company to fully reinstate Richards and to negotiate a reasonable compensa- tion for the time lost to the termi- nation. "I appreciate that initially the employer attempted to have a steward present when it first sought to meet with the grievor. But when that did not happen, the employer could have called the grievor back for a meeting with a steward or could even have ar- ranged a telephone meeting with a steward and the grievor to in- form him of the suspension," said Jesin. Reference: Coca Cola Refreshments Canada and Unifor Local 973. Norm Jesin — arbitrator. Craig Lawrence for the employer. Cynthia Watson for the employee. Nov. 2, 2016. < Ontario pg. 1

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