Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2017 ARBITRATION AWARDS January 23, 2017 inside his car (accompanied by a barking dog), waiting to pick up his girlfriend (who worked at the pool part of the complex) and he became agitated. When he finally went inside, he saw a former business associate, Kai Liu, who worked as a videog- rapher for Nicholson while he was a wrestler. Nicholson violently smashed his fist on the desk in front of Liu, frightening him and other patrons who were standing at the desk. Nicholson then walked to the pool area and loudly spoke with his girlfriend, striking a white pool chair and damaging it beyond re- pair. Nicholson's girlfriend didn't expect him to appear that day; instead she was waiting for her mother to pick her up. On his way out the door, Nich- olson passed by Liu's desk and told him he was "in trouble" and he would be contacted by Nichol- son's lawyer regarding their busi- ness dispute. On Aug. 7, Nicholson was ter- minated from his job via letter from manager Luc Lavictoire: "We have concluded your behav- iour on March 28 is unacceptable and the impact they had on your co-workers constitutes an irrepa- rable breach of trust and the city's code of conduct. As such, we are terminating your employment with the City of Ottawa effective today." The Canadian Union of Public Employees (CUPE), Local 503, grieved the dismissal as unfair and said Nicholson should have been given a suspension. It argued Nicholson had received experi- mental treatment for hepatitis C while on leave and this contribut- ed to his agitated state and mood swings. But the city said Nicholson's three separate incidents of intimi- dation on one day were enough to warrant the firing and it caused employees to fear for their safety. Arbitrator Russell Goodfellow disagreed and upheld the griev- ance: "While clearly serious, we do not view the grievor's conduct as providing just cause for dis- charge. Nor do we see this as the kind of exceptional case in which the grievor should be denied re- instatement because the employ- ment relationship is no longer vi- able and cannot be restored." Liu had been a close personal friend of Nicholson, spending plenty of time with him and film- ing his various wrestling exploits, even acting the role of another wrestler on occasion. "We are not persuaded that any employee, including Mr. Liu, had any reason to fear physical vio- lence from the grievor nor were his actions intended to instill any such fear. The grievor was sim- ply frustrated and angry and he showed it in at least two highly in- appropriate ways: Slamming the desk with his fist and smacking or tossing the chair in the pool of- fice," said Goodfellow. A two-month suspension was issued and Nicholson was ordered reinstated, but to another facility in Ottawa. "The grievor not only worked at Ray Friel, he worked out at Ray Friel, he had friends and a girl- friend at Ray Friel, and he had a business relationship with an- other employee at Ray Friel," said Goodfellow. "We believe these circum- stances contributed to the grievor failing to treat the workplace, first and foremost, as a workplace, sub- ject to the legitimate norms and expectations of workplace behav- iour." Reference: City of Ottawa and the Canadian Union of Public Employees, Local 503. Russell Goodfellow — arbitrator. Iain Aspenlieder for the employer. John McLuckie for the employee. Dec. 20, 2016. Museum curator bumps coworker after job redundancy KEVIN MCALEESE had worked at The Rooms museum in St. John's since 1994 before his posi- tion became redundant in 2013. McAleese invoked a bumping request so he could secure an- other position as curator. He had 33,754 seniority hours, compared to 6,762 seniority hours earned by curator Maureen Power. He argued that his classifica- tions for the curator position was slightly different than what was stated in the position description form, but his experience and edu- cation were in a related field and qualified him for the placement. McAleese had degrees in ar- chaeology and anthropology and did post-graduate studies in folk- lore. In 1994, he taught course in anthropology at Memorial Uni- versity in St. John's. He also took more archaeology courses and participated in an excavation in Labrador for his master's thesis. McAleese was lead curator for the L'Anse Aux Meadows Vikings exhibit. After Anne Chafe, director of the provincial museums divi- sion since 2007, denied McAleese bumping rights, the Newfound- land and Labrador Association of Public and Private Employees (NAPE) union grieved it. The union said McAleese's re- sume included a degree in arche- ology, which would have qualified under the position description requirement that the curator "specializ(es) in Newfoundland and Labrador history, folklore or related fields." As well, it said McAleese's 20 years' of experience qualified him as fulfilling more than two years' experience in cura- tion, rather than a degree in muse- um studies, which he didn't have. Letters of support from col- leagues in the museum industry were submitted in his testimony. Chafe testified against McAleese's qualifications, arguing history was different from arche- ology. She said history academics were expected to be members of different associations from those of archeology, each with different codes of ethics. As well, methods of study and the focus were differ- ent between the disciplines. The archeology department at the museum focused mainly on Aboriginal culture, whereas the history department's main goal was the study of European culture. And according to the collective agreement, one bargaining unit could not complete the work of another, rendering the archeology and history departments incom- patible, said Chafe. McAleese did not meet the minimum requirements, she said. Chafe also said he didn't have experience cataloguing or apprais- ing artifacts, or project manage- ment experience, which was stat- ed in the position form. In upholding the grievance, ar- bitrator James Oakley found he did have the proper equivalency of a museum studies degree and this should have been considered. "McAleese has demonstrat- ed experience equivalent to at least two years' working experi- ence in the curation of a history collection," said Oakley. "It was unreasonable not to consider McAleese's experience for about 20 years as a museum curator, and his considerable experience as a curator of exhibits that included artifacts from the history collec- tion, as meeting the requirement of equivalency to the formal edu- cation requirement of a degree in museum studies." The position requirement of cataloguing, appraising artifacts or any project management expe- rience was unreasonably rejected by Chafe, according to Oakley. "With respect to project man- agement skills, McAleese dem- onstrated project management as chair of the curatorial team for the Viking Millennium exhibit and as lead curator on other exhibits; with respect to artifact catalogu- ing techniques, McAleese was re- sponsible for cataloguing done by other staff and was familiar with the museum software program," said Oakley. McAleese was awarded the po- sition effective the date his former position was made redundant, with compensation to be deter- mined. Reference: Government of Newfoundland and Labrador (Marine Services) and Newfoundland and Labrador Associa- tion of Public and Private Employees. James Oakley — arbitrator. Lisa Curran for the employer. Chris Henley for the em- ployee. Aug. 9, 2016. < Ex-wrestler pg. 1

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