Canadian Labour Reporter

7 Canadian HR Reporter, a Thomson Reuters business 2017 CANADIAN LABOUR REPORTER NEWS residences. If they received gifts, they required approval from man- agement. In addition, staff members were not permitted to "conduct busi- ness" with residents except for the home's administrator, with the handbook stating "contravention of the regulation can be consid- ered cause for dismissal." The policies were designed not only to protect RC from conflict- of-interest issues, but also resi- dents, as many suffered from de- mentia. In October 2015, a 95-year-old resident came to live at RC. He used an iPad, though it gradually became more difficult for him to use due to arthritis. The resident's sister-in-law found a notebook in which the resident had kept track of tips he had paid — likely to RC staff and most were for $20 — but didn't re- cord the names of the recipients. When she found out about RC's no-tipping policy, she spoke to the administrator about the tipping. In February 2016, the same resi- dent's sister-in-law noticed the resident's iPad was missing from the coffee table in his unit where it was usually placed. When she asked the resident about it, he said he had given it to the employee to have it "fixed." But the sister-in-law didn't think the iPad was broken, he just had trouble using it. The sister-in-law told the front desk clerk about the iPad and asked about the policy on staff re- moving property from a resident's unit. A few days later — around March 1 — the administrator con- tacted her to discuss the matter. Over the next three weeks, the sister-in-law asked the resident if his iPad had been returned, but the answer was no until one day it was once again on the table in the resident's unit. The iPad seemed to be in the same condition it was when it went missing. During this time, RC conduct- ed an investigation that included consulting with police on possible criminal charges. On April 6, the administrator and manager met with the employee and a union rep- resentative to discuss her breach of policy regarding the iPad and an- other incident where she received items from a resident's daughter without advising management. The employee wasn't upset and didn't challenge the written warn- ing for receiving the gifts, though she understood the policy to refer to gifts and gratuities from resi- dents, not their family members. As for the iPad, the employee acknowledged she had taken it and returned it after "two or three days." She denied receiving money to fix it and said she had taken it home to read about it so she could teach the resident how to use it — though she didn't own one herself or know anyone who had one. The woman said she read "a little bit" of information and the iPad "sat around" her home until she returned it. She said she didn't think that constituted conducting resident business. Her manager reviewed her work schedule and noted the date she said she re- turned the iPad was a day off. Following the meeting, the ad- ministrator and manager decided to terminate the employee for breach of policy. The employee refused to read and sign the dis- cipline record and CUPE grieved the dismissal. The union argued that RC hadn't fully informed employees on the policy relating to resident business and gratuities and failed to warn employees of the conse- quences of a breach. In addition, it claimed the em- ployee wasn't given the opportu- nity to respond to a disciplinary incident before discipline was ad- ministered, as provided for in the collective agreement. Arbitrator weighs in Arbitrator John McEvoy found there was a "common misunder- standing" regarding the resident business policy. RC considered anything with a financial element — such as taking a resident to the bank or making a payment — but it wasn't clear in the policy if non- financial business was included. While the policy indicated that the only person to conduct resident business was the admin- istrator, it was clear that residents' personal business, such as helping with a puzzle or changing a chan- nel on the TV, could not logically be limited only to the administra- tor. As a result, it could be deter- mined that resident personal business didn't fall under the ju- risdiction of the policy and the act of helping a resident with his iPad didn't breach the policy, said McEvoy. However, McEvoy found the employee's taking of the resident's iPad showed questionable judg- ment. It didn't make sense to take it for fixing when the employee didn't know much about it, and she should have at least checked with management, he said. In addition, the employee's ex- planation lacked credibility — she initially said she kept it for two or three days but then said it sat around her house, making it more likely it was gone for three weeks. McEvoy found the taking of the iPad and keeping it for as long as she did warranted discipline. However, she wasn't given a prop- er warning and was terminated the same day as her disciplinary meeting. In addition, it took more than a month after the misconduct for the discipline to be issues. Both of these facts showed RC didn't fol- low progressive discipline as out- lined in the collective agreement. The grievance was upheld, but since CUPE and the employee didn't seek reinstatement due to a "change of circumstances," McE- voy ordered the parties to negoti- ate a remedy. For more information see: • Riverside Court Retirement Residence Inc. and CUPE, Lo- cal 5064 (Miller), Re, 2016 Car- swellNB 547 (N.B. Lab. & Emp. Bd.). < Health-care worker pg. 1 'Common misunderstanding' regarding policy: Arbitrator Photo: pikcha (Shutterstock) Employee wasn't given proper warning, was terminated same day as disciplinary meeting.

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