Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2017 ARBITRATION AWARDS January 9, 2017 75 months in the U.S. for drug trafficking and money laundering. "I have reasonable grounds to believe that a security concern ex- ists in your relationship with Mr. A and I am confirming my order that you not have any contact with him while the necessary queries and investigations are conducted to determine the existence and ex- tent of the security concern," said a letter given to the detective. Mr. A was involved with the Hells Angels in the import of co- caine into Canada and the export of marijuana to the U.S., and he was arrested in 2008. When his sentence ended Dec. 12, 2013, he received a five-year probationary term, but only for the U.S. On March 7, 2015, the detective and Mr. A went on a blind date. When he told her of his past, the detective used the police records database to search his name and found he had no current criminal record. Such a query (for her own per- sonal use) was against the police department policy and the detec- tive was given a reprimand. Eventually, the chief of police heard about the relationship and he imposed a no-contact order for the detective. On March 30, the Abbotsford Police Association grieved the or- der as an improper exercise of au- thority. The detective admitted that during the process, she repeatedly had contact with Mr. A, in viola- tion of the order. She said various personal situ- ations — including the death of a family dog and the suicide of a fellow police officer — were trau- matic events and she needed to confide her feelings with Mr. A. On June 2, she was suspended with pay for breaching the no- contact order. The suspension was lifted July 17. A final decision was rendered on July 28 by the chief in a letter: "I am ordering the removal of (the detective's) senior detective desig- nation. I am aware that this will re- sult in a five per cent reduction in pay and is a form of demotion." A further suspension of 12 shifts was also imposed. The no-contact order also re- mained in effect. On July 31, the association again grieved the decision and said a Charter of Rights violation against the detective was made in regards to her freedom of expression and association. Arbitrator Arne Peltz ordered the suspension be reduced to five days and the detective's rank rein- stated after one year. "I have now ruled that stage 2 of the order infringed the detective's charter rights. The detective can- not be disciplined for violating an unconstitutional order," said Peltz. The earlier decision to order no contact was made in an urgent sit- uation and was justified because it was made before the police inves- tigation found Mr. A was no longer involved in criminal activity, he said. "I agree with the employer's submission that the misconduct did cast doubt on the detective's ability to serve as a mentor and leader, but a one-year loss of rank will be adequate as punishment and correction, following which the grievor will be able to per- form again in the senior detective role. The detective's professional abilities were never called into question," said Peltz. Reference: Abbotsford Police Board and Abbotsford Police Association. Arne Peltz — arbitrator. Donald Jordan, David Woolias for the employer. Craig Bavis, Jeff Sanders for the employee. Aug. 9, 2016. CP conductor suddenly has employment file closed A Canadian Pacific (CP) conduc- tor who had been off work due to a medical condition abruptly had his employment file closed by the company. David Danchilla was hired by the company in 1988 and had to leave work on March 1, 2012. But on Aug. 24, 2015, CP decid- ed to close his file and effectively terminate Danchilla's employ- ment, arguing undue hardship. The company had been receiv- ing regular updates on his condi- tion while he was at home, despite having to occasionally coerce him to do so. During his time off, Danchilla underwent several surgeries and it was expected he could eventually return to work full-time but in an accommodated fashion. Various open positions within the company were investigated but none were judged by CP to be suitable for Danchilla to return to work. In April 2015, a supervisory position was floated as a potential landing spot for his return to full employment. This was eventually denied for unspecified reasons. In June, the company suggested Danchilla work as a flagger, but he declined that possibility because of the hours of work that were pro- posed. The union, Teamsters Canada, argued that CP was not open to modifying the hours of work and this prevented Danchilla from be- ing amenable to the flagging job. It said the company violated the collective agreement under the workplace accommodation policy and the Canadian Human Rights act. On July 16, 2015, the company wrote to Danchilla informing him his employment file was being terminated because "no suitable open positions were found during the time he had restrictions." Danchilla countered and told the company he would try to in- crease the amount of hours he could work; the company re- sponded by requesting further medical information to be provid- ed by Aug. 15. The medical report provided said Danchilla could return to work but he would have to be ac- commodated with a graduated schedule. It further said he was scheduled for surgery in September and this could further facilitate a full-time return to active duty. But when the company decid- ed to close his file, the letter said "there is no complete recovery ex- pected in the foreseeable future." Arbitrator Graham Clarke up- held the grievance and ordered Danchilla reinstated immediately. "CP has not demonstrated, despite its multiple bona fide efforts, that it had reached the point of undue hardship." While Danchilla was lackadaisi- cal in releasing his medical infor- mation to the company during his time away from work, this could not be considered a determining factor in the case for undue hard- ship, said Clarke. "While Danchilla did not assist his situation at times by being slow to provide updated medical infor- mation, it does not seem unrea- sonable for an employer to wait an additional evaluation period when an employee is scheduled for sur- gery. While the overall length of an absence is clearly relevant, so are pending surgeries," he said. The company simply decided Danchillas was unfit for duty but it did not provide a valid reason, ac- cording to Clarke. "CP has not demonstrated why it concluded it could not accom- modate Danchilla. Why were oth- er positions deemed unsuitable? What possible modifications to positions were contemplated to evaluate if Danchilla could per- form them? Was any consider- ation given to bundling duties in order to provide an opportu- nity for accommodated employ- ment?" Reference: Canadian Pacific Railway Company and Teamsters Canada Rail Conference. Graham Clarke — arbitrator. Chris Clark for the employer. Ken Stuebing for the employee. Nov. 4, 2016. < Senior pg. 1 "It does not seem unreasonable to wait an additional evaluation period when an employee is scheduled for surgery."

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