Canadian Labour Reporter

April 3, 2017

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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6 Canadian HR Reporter, a Thomson Reuters business 2017 COLLECTIVE AGREEMENTS April 3, 2017 while working with raw food. But on Sept. 28, he did so and violated the company's policies. He had been working under a last-chance agreement, after two previous suspensions and a warn- ing when he committed the viola- tion. A letter he was given by Coleen Aldred, human resource coordi- nator, said Daniel was "not follow- ing proper flow and going into a raw zone when the flow light indi- cates a RTE zone, then returning to the RTE zone." The union, Bakery, Confec- tionery, Tobacco Workers and Grain Millers International Union (BCT), Local 406, grieved the decision and argued Daniel had been diagnosed with adult attention deficit hyperactive dis- order (ADHD ) on April 11, 2011, and had been prescribed Ritalin ever since. He said he told the company about his diagnosis, but Barbara Anne O'Brien, Bonté's executive vice-president, testified the com- pany wasn't aware of the diagnosis until a Nov. 17 letter was received, well after he was let go. O'Brien said the company knew Daniel made mistakes, but no re- quest for accommodation was ever made. Glen Peddle, raw meat manager, confirmed Daniel told him about his ADHD sometime in 2011 shortly after he was diag- nosed, but nothing further came of it. As for the incident that led to his firing, Daniel admitted he committed a "wrong procedure" by entering a door the incorrect way, but he said he washed his hands and put on a proper cloak, as per the protocol. A licenced psychologist, iden- tified as "MM," said the fact an- other employee opened the door for Daniel would provide enough of a distraction for someone with Daniel's condition to make an im- pulsive and ultimately poor deci- sion. But the company argued Dan- iel's continued employment would impose undue hardship especially with raw meat and cross-contamination, which in extreme cases could cause death. It also said because neither Daniel nor the union ever asked for ac- commodation around an ADHD disability, the company could be sanctioned for a human rights vio- lation. Arbitrator Robert Breen up- held the grievance and ordered Daniel returned to employment, but not on the raw food line. "It is clear to me that the so- called 'raw' is a work environment that Daniel ought not to return to, even with accommodation mea- sures. I am satisfied that there exist too many variables present or likely to be present to consider this work placement reliable or safe for Daniel, or for Bonté, on his re-entry to the plant." The company had a respon- sibility to consider the mental health of an employee who con- tinued making minor mistakes that lead to his last-chance agree- ment and subsequent dismissal, said Breen. "Bonté therefore both knew and ought to have known of Dan- iel's disability as a related problem, as a causal link. I find that Bonté ought reasonably to have posed the questions: 'What is going on? Is there a problem? Is what is hap- pening linked to the/a disorder?'" As such, the last-chance agree- ment was ordered removed from Daniel's employment record. "Given my finding as to Dan- iel's recurring, disability-related events, it appears the foundations of the last-chance agreement are now fractured," said Breen. Daniel was ordered to continue to seek treatment for his ADHD condition which should help him successfully return to Bonté Foods, according to Breen. Reference: Bonté Foods and Bakery, Confectionery, Tobacco Workers and Grain Millers International Union (BCT), Local 406. Robert Breen — arbitrator. Sylvie Michaud for the employer. Brenda Comeau for the employee. Feb. 21, 2017. Sanitation worker fired after cashing insurance cheque A 27-YEAR solid waste division worker at the City of Toronto was fired after he cashed a cheque from an insurance company for knee braces that were never pur- chased. Joe Pugliatti received a cheque in 2012 for $4,314 from one of the city's benefits providers, Manu- life, that was supposed to go to the Canadian Institute of Orthope- dics for two knee braces. A prescription was issued from the institute on April 30 for the braces. Eventually, Pugliatti was issued an insurance cheque on Sept. 6 that was intended to fund the braces. It was cashed on Sept. 14. The owner of the institute was being investigated for fraud by Toronto Police in 2012, but he died before any charges were laid. Police notified Manulife to moni- tor any transactions involving the organization. In December 2013, Manulife investigator Deborah Vittie-Pa- gliaro spoke via phone to Pugliatti about the cheque. A transcript of the taped call indicated suspicious behaviour from Pugliatti when asked about where the money was supposed to go. "(The institute owner) wanted $1,000 at the first month, $1,000 the second month, and $1,000, and I said, 'No, a little bit at a time I'll give you, until you do what I want.' He was supposed to fix my feet," said Pugliatti. However, he later said he thought the conversation was about a $475 claim for orthopedic shoes a few months previously. In July 2014, Pugliatti was again interviewed — this time by city management — about the cheque. Pugliatti claimed he cashed the cheque but the money went to his supplier who never did provide braces. He said his supplier was former city worker James Smith. But Pugliatti then said he never did deal directly with the institute. Smith's role was to act as the sup- plier. He was to give Smith $2,000 up- front, then the remaining money once he received the braces. "He'd have to give it to his friend, and then I'd get my brace," said Pugli- atti during a subsequent interview a few weeks later. He also said the printing and signature on the Manulife claim was not his and he didn't recog- nize the handwriting. Pugliatti reimbursed Manulife with a cheque for the total amount after the second interview. He said he was told by the company it was part of a fraud so he claimed he wanted to return the money. On Dec. 2, 2014, he was dis- missed via a letter written by Der- ek Angove, senior manager, citing a "fundamental breach of trust." The union, Canadian Union of Public Employees, Local 416, grieved the decision, arguing Pugliatti was an innocent party to a fraudulent arrangement. As a long-tenured worker, making a good salary, it was unlikely Pug- liatti would participate in such a scheme, said the union. However, the city countered and said Pugliatti gave multiple versions of his side of the story, which spoke to his credibility. Arbitrator Lorne Slotnick dis- missed the grievance. "On the bal- ance of probabilities, Pugliatti was a willing participant in the ben- efits fraud." Even though Pugliatti said the claim form was not his, it is unbe- lievable to think he had no part in its creation. "I find it highly unlikely that his personal information —including his correct birthdate and espe- cially his unique Manulife benefits plan number — would show up on that form without his co-opera- tion," said Slotnick. Pugliatti reimbursed Manulife, said Slotnick, but that was after some guidance was given. "While he did eventually pay back the money to Manulife, it appears from the interview notes that this was only after the union advised him to do so. Given the many opportunities he had al- ready had to back out of the scheme or admit his involvement, the repayment was too late to count significantly in his favour." Reference: Toronto (City) and Canadian Union of Public Employees, Local 416. Lorne Slotnick — arbitrator. Omo Akintan for the employer. James McDonald for the employee. March 20, 2017. < Meat factory pg. 1

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