Canadian Labour Reporter

April 10, 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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8 Canadian HR Reporter, a Thomson Reuters business 2017 ARBITRATION AWARDS April 10, 2017 maligning the state of cleanliness along a route: "Pride in self, pride community. Guess we know how some think of themselves. Person- ally I could not live like that. I'd ei- ther have to go clean it up or move out," wrote McQuarrie. Printed copies of the posting circulated among various work- ers who said they felt hurt by the comments. Calvin Simmons, who lived in North Preston, confront- ed McQuarrie on May 29, result- ing in an argument. Two other drivers were also in- vestigated regarding the posting. One started the thread by listing various pieces of garbage he saw on the side of the road. The other then replied with a list of what he saw. Finally, McQuarrie's com- ments were added. The other drivers were given coaching about the appropriate- ness of making such comments on a public forum such as Facebook. During her May 28 interview with supervisor Kerri Howells, McQuarrie was said to be defen- sive, didn't show sufficient re- morse and failed to recognize how the comments would demean an entire community. Howells said McQuarrie blamed driver Terry Thomas as the instigator of the complaint, in- stead of immediately apologizing. McQuarrie said she tried to apolo- gize during the interview, but was told not to bother as the investiga- tion was ongoing. She also wrote a letter of apol- ogy to Robar, but she said that was ignored. McQuarrie was finally let go via letter on June 4. She had served a three-day suspension and a nine-day suspension in 2013 after various complaints about her conduct while driving were received from the public. These were listed as further rea- sons for her dismissal. At the time she was let go, Mc- Quarrie was 22 days away from having the previous suspensions removed via the sunset clause. The union, Amalgamated Tran- sit Union, Local 508, grieved the firing and argued comments made during the investigation should not be considered racist, because Howells misunderstood McQuar- rie's intention when she mused about who wrote the complaint. McQuarrie said she was refer- ring to the level of skill it would take to write such an articulate letter, not the person's skin colour. She had helped Thomas previ- ously draft a letter and as a former teacher, she said she was aware of a lot of drivers' proficiency with the language. Arbitrator Kathryn Raymond upheld the grievance as an "exces- sive response." A 30-day suspen- sion was ordered as the appropri- ate discipline for writing the post, and McQuarrie was reinstated to her position, with 75 per cent of her lost wages to be paid. The public comments were harmful to the employer, said Ray- mond: "McQuarrie created a situ- ation whereby she has exposed her employer to an ongoing risk of significant embarrassment and reputational harm." But the other driver's posting were not given the same treat- ment as McQuarrie's, which was unfair, according to the arbitrator. "I have a concern that the em- ployer's assumption that Mc- Quarrie's post was the worst, because of the reaction of two co- workers, too quickly accelerated the employer's conclusion that termination was warranted," said Raymond. "Had Howells consid- ered these facts, she likely would and should have concluded that immediate termination of Mc- Quarrie was not warranted by the Facebook post." Reference: Halifax (Regional Municipality) and Amalgamated Transit Union, Local 508. Kathryn Raymond — arbitrator. Randolph Kinghorne for the employer. Kimberley Turner for the employee. Feb. 17, 2017. Ontario forestry worker denied bereavement leave WHEN HIS partner's grandfa- ther died, a spreader operator at Columbia Forest Products was de- nied five days' bereavement leave. Dominic Lamontagne worked at a mill in Hearst, Ont., for 20 years and requested the time off when Jessica Lozier's grandfather passed away on Jan. 11, 2017. His request was denied because Lozier was not his common-law spouse, according to the employer. But Lamontagne said Lozier moved into his house in June 2016 and they had been together in a sexual relationship ever since. When informed of the death on a Wednesday, Lamontagne phoned the company and left a message that he would be tak- ing five days off to help the family make arrangements for the funeral that was scheduled for Saturday in Kapuskasing, Ont. He didn't attend work on Thurs- day, but later in the day received a call from a supervisor denying the leave. Lamontagne went back in to work on Friday. He missed more family events Monday through Wednesday because he was re- quired to be at work. Gilles Levesque, general man- ager, testified the benefits booklet lists a spouse as one who "has been living common-law for at least 12 months, and whom you have des- ignated in writing to the carrier/ adjudicator as your spouse." Since they hadn't been together that long and neither one listed the other as beneficiary on the bene- fits declaration (Lozier was also an employee at Columbia), they were not considered spouses, according to the company's position. Columbia said that in January 2017, Lozier's contact information was listed as her mother's address, meaning she didn't permanently reside with Lamontagne. The union, United Steelwork- ers, Local 1-2010, grieved the de- nial and argued Lamontagne and Lozier were in a civil common- law relationship. The definition of what made a spouse was not defined in the collective agree- ment, said the union, and the com- pany was not correct in defining a spouse via the benefits booklet. The union also said that Lamontagne and Lozier publicly announced their status as a couple on Facebook in November 2016. It asked to be awarded general damages of $1,500. Columbia said that Lamon- tagne could have used personal days when denied bereavement leave, but he chose not to do so. Arbitrator Jesse Nyman upheld Lamontagne's grievance and or- dered four personal days' leave to be awarded, as well as pay for the Thursday he took off. "The relationship of Lozier and Lamontagne is marriage-like or conjugal. They are certainly not just roommates, and are much more than mere lovers. They have established a home for themselves and their children. They are com- mitted to each other, have built an emotional and financial interde- pendence and envision a future where that will grow over time," said Nyman. The fact that Lozier and Lamontagne were not listed as each other's beneficiaries was giv- en little credence by the arbitrator. "They do not qualify to do so until they have lived together for a year. More importantly, as they are both employed by the employer, there is no need to do so because they both already have the same benefits and can independently claim coverage for their children." However, damages were not awarded. "While (Lamontagne) was mad and disappointed that he was not granted leave, there was no real pain and suffering or dam- age to his self-worth caused by the denied leave that would warrant an award of general damages." Reference: Columbia Forest Products and United Steelworkers, Local 1-2010. Jesse Nyman — arbitrator. John Saunders for the employer. Jim Fyshe for the employee. March 23, 2017. < Halifax transit pg. 1 Correction: The arbitration involving Seaspan and Canadian Merchant Service Guild, in the March 20, 2017, issue, should have said Chris Leenheer for the employer and Sandra Banister for the employee, not the other way around. We apologize for the error.

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