Canadian Labour Reporter

May 29, 2017

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7 Canadian HR Reporter, a Thomson Reuters business 2017 CANADIAN LABOUR REPORTER NEWS In June 2014, Goerzen received his first performance appraisal from the city. His overall rating was "needs improvement" and he understood it wasn't a posi- tive evaluation and he needed to shape up. A short time later, Goerzen took a nine-month parental leave. Shortly after he returned to work in mid-2015, he received another performance evaluation. Because Goerzen had missed much of the past year due to his leave, his supervisor clarified that it was based on "prior incidents" and the brief time since he had re- turned from his leave. His perfor- mance in different areas was rated as "expectations met" and "needs improvement" and the supervi- sor provided a list of examples of where his performance was lack- ing: • The dump truck and telephone wire incident. • Leaving the city's gas monitor in the dry well of a lift station in- stead of returning it to its stor- age location. • Leaving a truck's lights flashing and door open in an unsuper- vised shop, • Failing to park a tractor in a safe manner, causing it to roll into the street, • Observed by city manager op- erating a lawn mower in an un- safe manner between trees. Between August 2015 and May 2016, Goerzen received three incident log sheets after he was injured when he used the wrong blade on a weed trimmer; when he left a city truck on the street for an entire weekend with the keys in the ignition and the window open; and when he injured himself when working on barbed wire. Goerzen wasn't formerly disciplined for any of these events. In July 2016, Goerzen received his first written warning for leav- ing a city truck running with the keys in the ignition before leaving for his lunch break. Goerzen's 2016 evaluation was better than his previous ones, but there were still areas needing improvement. Goerzen said he would work on the issues and im- prove his future reviews. In October, Goerzen and an- other city works employee met with an organizer for the Cana- dian Union of Public Employees (CUPE), as the union was inter- ested in organizing Warman's workers. Warman was the largest unor- ganized municipality in Saskatch- ewan. Both Goerzen and the other employee agreed to talk to other City of Warman employees, with Goerzen agreeing to be an inside organizer. CUPE held a public meeting for Warman employees on Dec. 14. Goerzen attended the meeting and spoke in favour of the union drive, while another employee — who was taking notes — spoke against unionization. However, that same night, Goerzen was supposed to go to a hockey game with his supervisor and their sons. Goerzen told his supervisor that he couldn't go be- cause his furnace wasn't working. The city's manager of parks and recreation found out about the union organizing drive and Goerzen's involvement. He called Goerzen's supervisor about it and the supervisor informed his supe- riors. The public works and utilities manager asked another employee if Goerzen had talked about the drive, but that employee claimed to know nothing about it. However, a city hall employee told him she had received emails about unionization and the Dec. 14 meeting. On Dec. 15, 2016, Goerzen's su- pervisor assigned him to prepare the city's shop floor for painting. However, Goerzen claimed an- other supervisor asked him to go to city hall to see if there was any ice that needed to be removed. When Goerzen drove to city hall, his supervisor followed him and observed him driving around the city for about 30 minutes with- out stopping at city hall. The su- pervisor alerted the other super- visor as well as the public works and utility manager. When confronted, Goerzen said he was driving around check- ing the sewage lift stations for ice. However, his supervisor had observed Goerzen driving down streets where there was no lift sta- tion and it was the supervisor's re- sponsibility that day to check the lift stations. The city works managers de- cided Goerzen should be dis- missed because of his work ethic and safety concerns. On Dec. 16, the city terminated Goerzen's employment. CUPE responded by filing an unfair labour practice complaint, accusing the city of terminating Goerzen while he was engaged in assisting its unionization efforts for city employees — an activ- ity protected by the Saskatchewan Employment Act (SEA). CUPE argued that Goerzen's termination intimidated other city employees from exercising their right to join a union, and management questioned employ- ees about the drive, both of which were also prohibited under the SEA. The board found that the con- versation between the public works and utilities manager and a city employee about the drive wasn't significant enough to be considered interference. How- ever, the timing of Goerzen's ter- mination was suspicious, coming shortly after the city learned about the union drive and his involve- ment. The city used the Dec. 15 in- cident as a culminating incident that, along with Goerzen's previ- ous disciplinary record, justified termination. The board noted that the city's progressive discipline procedure involved six steps: verbal warning, two written warnings, suspension with pay, suspension without pay, and termination. Goerzen had only received a verbal warning and a written warning, along with a few incident log sheets. There was no evidence that the culminating incident "was sufficiently egregious that it justified jumping from number 2 (on the progressive discipline pro- cess) all the way to number 6," said the board. Given that management was aware of the union drive and man- agement was trying to find out the extent of Goerzen's involvement, the board found it likely that Go- erzen's organizing efforts played a role in the decision to terminate his employment. The city was ordered to rein- state Goerzen with compensation for lost pay and to stop its unfair labour practices that were con- trary to the SEA. For more information see: • Warman (City) v. CUPE, 2017 CarswellSask 212 (Sask. Lab. Rel. Bd.). < Unfair labour pg. 1 Admonishment 'from number 2 all the way to number 6' Photo: Matej Kastelic (Shutterstock)

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