Canadian Labour Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2017 ARBITRATION AWARDS January 16, 2017 because he was on layoff. Because of what it termed a miscommunication, the United Steel Workers, Local 1-1937, filed a grievance. One of the requirements for the operator post was for the em- ployee to possess a B.C. driver's li- cence. However, Holland's licence was not valid because he refused to pay a debt of $490 (which had arisen to $1,700 with interest) to the Insurance Corporation of British Columbia stemming from a previous vehicle collision. The employer, Lyle Newton, said he would have paid Holland's debts so he could secure a licence but he wasn't aware Holland was not licenced until the hearing. In the past, the job did not in- clude the requirement to have a licence because all of the work was performed in the bush and not on any public roads. The requirement was not listed on the job posting, but the em- ployer testified that many reasons necessitated the need for a licence. For example, the company provided operators with pickup trucks to drive to and from work. As well, an operator was required to deliver supplies on the pickup trucks that may be required by other operators. Also, an opera- tor may be needed to perform oc- casional man-checks (driving to a site whenever a worker failed to an- swer a safety radio call to check in). The union argued the job was given to a less senior worker, which violated the collective agreement. And by not stating in the posting that a driver's licence was necessary, the employer at- tempted to retroactively circum- vent the collective agreement. The union also argued plenty of operators worked at any given time, so the requirement to man- check could be accomplished by those employees. But the employer countered that the requirement to have a valid licence was a long-standing practice and was verbally implied. It argued it did not have to be writ- ten into the posting. In dismissing the grievance, ar- bitrator Paul Love said the posting period time limit — which Holland missed — was effectively waived when Newton offered to pay for the licence. However, the requirement to hold a valid B.C. licence was an essential part of the job posting, even though it was not specifically written into the posting. "The requirement of a driver's licence is reasonable and related to the tasks to be performed. It was not a requirement imposed by the employer that was directed against Holland in an attempt to deny him the position. JRL has turned down job applicants in the past because they did not hold a driver's licence," said Love. "It is quite reasonable for an employer to assume that a person applying for an operator job would be li- cenced for driving as they need to get to work." The principle of seniority was not violated because the licence provision was more important in considering who should have won the position, according to Love. "The requirement for an opera- tor to have a driver's licence does not have a discriminatory effect on senior employees. This is not a case where Holland has a medical or other condition that limits his ability to drive a motor vehicle. He has chosen for personal reasons not to get a driver's licence." Reference: Jordan River Logging and United Steel Workers, local 1-1937. Paul Love — arbitrator. Gregory Heywood for the employer. Jonathan Hanvelt for the employee. Dec. 8, 2016. Youth home workers regularly left work early For a period of five years, a cadre of counsellors at a group home for young male sexual offenders en- gaged in cutting short overnight shifts, supposedly to make up for not receiving regular breaks while on the job. Counterpoint House in Edmon- ton was a group home that was scheduled to have at least two staff counsellors posted during over- night shifts at all times for safety reasons. But beginning in 2008 and ending in 2013, as many as 18 staff members regularly left shifts early and began shifts late. On July 9, 2013, a counsellor identified as "C.T." (the whistle- blower) notified program man- ager Jennifer Bond that many em- ployees left work early and started shifts late. C.T. said some staff members regularly left between 3 a.m. and 5 a.m., when they should have stayed until 7 a.m. when relief staff arrived. On weekends, some staff members began 7 a.m. shifts at 9:30 a.m. and 10:30 a.m. When Bond found out about staff not fulfilling duties, some counsellors exchanged text mes- sages alerting workers should work full shifts. "(Bond) has made it clear that she has brought it to the attention of higher ups, it is grounds for termination, and that it is completely unacceptable," read one of the text messages. When interviews were con- ducted to discover the depth of the problem, various reasons were given by counsellors: staff were not given regular breaks; it was a management-approved practice; long hours without management interaction, it was inevitable. A 17-year veteran, Tim Page, was terminated on Aug. 15, 2013, because of his long-standing ser- vice — he knew what he did was wrong — and his evasive answers during an investigation into the practice of leaving early. Page grieved his treatment and alleged the other employees were not treated similarly. Three other full-time workers were termi- nated and 13 casual counsellors were given written reprimands. One full-time worker was given a three-day suspension because he acknowledged his actions were wrong and ceased the behaviour. Another worker was given a writ- ten warning because she acted as a whistleblower and was protected from further persecution. Page had been employed at Counterpoint House since 1996 and was considered an excellent youth counsellor. He organized regular outdoor hikes and was rec- ognized by management as having a good rapport with the residents at the home. The termination letter cited "the seriousness of your conduct, your attempts to interfere with the investigation, as well as your lack of remorse or insight into your actions and the impact that this could have on the patients, your co-workers and the organization." The Health Sciences Associa- tion of Alberta grieved Page's re- lease arguing it was "without just cause, unfair, unreasonable and as such constitutes a violation, con- travention and misapplication of the collective agreement." When Page was interviewed, he claimed he had been given two breaks in his 17 years and four months on the job. Some of his other answers about the duration of shift sign-outs were contradict- ed by other counsellors. Page said during testimony that he and the other counsellors would stick up for one another if questioned by saying the missing worker was sick. Arbitrator Alan Beattie dis- missed the grievance and said it was a shame the home would lose a good worker. "The fraudulent conduct of Page over such an extended period of time, followed by his dishonesty at the interview and at the hearing, leave no doubt that termination is the appropriate penalty and that his long discipline-free service cannot mitigate the termination," said Beattie. "That consequence is particularly unfortunate in this case because Page was obviously a very good and well-respected counsellor." Page's behaviour at the hear- ing was further reason not to rule favourable in his grievance, said Beattie. "Page's responses at the inter- view and his evidence at the hear- ing were replete with dishonest answers. He knew he had to come clean if he had any hope of saving his job (which he admitted) but he still persisted in giving false information until confronted, in cross-examination, with disprov- ing evidence. He also did not show, at any time, remorse or extend an apology." Reference: Alberta Health Services and Health Sciences Association of Alberta. Alan Beattie — arbitrator. Monica Bokenfohr for the employer. Dennis Bennett for the employee. Dec. 13, 2016. < Lack pg. 1

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