Canadian Labour Reporter - sample

6 Canadian HR Reporter, a Thomson Reuters business 2017 ARBITRATION AWARDS May 29, 2017 answer to certain questions. The manual contained information that was supposed to be referred to when a donor answered yes to certain questions. A meeting was held on Dec. 11, where Johnston was asked why she failed to follow the exact script questions when screening potential donors. She was observed to para- phrase questions about a donor's potential sexual interactions and whether or not the donor ever had a blood transfusion in Afri- ca, both of which would indicate a potential danger to any blood donated to CBS. Johnston said she was screen- ing donors the same way she had done for about 10 years and it was intended to promote bet- ter word flow and deeper under- standing of the person. She had memorized the manual, so ref- erencing it was unnecessary, said Johnston. She had been previously ob- served during earlier evalua- tions, which Johnston passed with no issues raised. Johnston said she did not re- alize she had to do it word for word. "(It) would have been insub- ordination… if I felt I was doing something wrong. I didn't know it had to be word for word. I get it now," said Johnston during the investigation meeting. Johnston was terminated on Dec. 18. CBS reported having to re- call hundreds of different blood products due to her actions. The union, United Nurses of Alberta, Local 411, grieved the firing and argued any discipline should have been minor, espe- cially considering it would have been her first-ever negative job evaluation after many years of service. Arbitrator Tom Jolliffe upheld the grievance. "The evidence simply does not support (clinic supervisor Shelley) Peterson's conclusion that the grievor could never be trusted into the future, a long-time professional employee with an unblemished work re- cord to that point in time, who acknowledged and accepted her wrongdoing during the investi- gative process." A potential discipline was proposed by Jolliffe. "One might expect Johnston — a long-serv- ing employee without any past performance issues or discipline — would have faced a relatively short suspension on a progres- sive discipline basis with the pos- sibility of some retraining (or) counselling on the issue of abso- lutely adhering to the published SOPs (standard operating pro- cedures) which lie at the core of clinic staff properly performing donor screening activities." "We conclude that it did not provide just cause for terminat- ing the employment relation- ship in December 2013 of this employee with an unblemished work record over many years, excepting her handling of SOP 01043 which she had not previ- ously recognized to be a prob- lem, nor apparently anyone else," said Jolliffe. However, the arbitrator didn't let Johnston off without assign- ing to her some responsibility for how the situation unfolded. "She bears a degree of fault for failing to have already properly understood the requirements both with respect to the para- phrasing and the requirements respecting the donor selection criteria manual," said Jolliffe. Reference: Canadian Blood Services and United Nurses of Alberta, Local 411. Tom Jolliffe — arbitrator. Craig Neuman for the employer. Marilyn Vavasour for the employee. March 28, 2017. St. John's mechanic denied move into bargaining unit AFTER BECOMING disen- chanted with a move to a super- visory position, a mechanic's re- quest to return to his old job was denied by his employer. Dwayne Hawkins had worked at Toromont CAT in St. John's since 1995 as a journeyman me- chanic when a position as field service supervisor was posted in June 2014. Hawkins applied but decided to turn down an offer from the employer due to family and mar- riage issues. Another candidate was hired for the position on Jan. 1, 2015, but he resigned on May 23. Hawkins was asked by the com- pany to temporarily fill in which he did until Aug. 24, when he de- cided to accept the promotion and became a full-time supervi- sor. But the position proved too much for Hawkins and on Aug. 23, 2016, he sent an email to Toromont CAT manager Ed O'Keefe and union steward Eddy Farrell expressing his desire to quit: "Ed, after much delibera- tion, I am going to return to the shop floor. I have checked on it and it is in the CBA (collective bargaining agreement) under section 6.05 section D. I have one year and my last day will be to- morrow." Later that evening, O'Keefe responded: "As previously dis- cussed, the section of the CBA you refer to (6.05 D) relates to seniority retention while outside the bargaining unit. It does not secure your previous role within the bargaining unit." On Sept. 26, the union, Inter- national Union of Operating En- gineers, Local 904, grieved the decision and argued the collec- tive agreement allowed for work- ers to retain seniority if promot- ed outside the bargaining unit for one year and be allowed to re- turn if the supervisory position was unsuitable for the worker. But Toromont CAT disagreed and said the collective agree- ment did not contain an express right for a worker to return to the bargaining unit unilaterally after leaving it voluntarily. There was no provision for that to happen, said the company, unless the em- ployer exercised its management rights and allowed the transfer. And, it said, there were no open spots so the employee should not be allowed to force the employer to create a new po- sition to accommodate Hawkins' request to return to the bargain- ing unit. Arbitrator James Oakley de- nied the grievance. "There is no reference in article 6.05 D to any requirement that the employer retain a position in the bargain- ing unit for the employee in the event the employee desires to return to the bargaining unit. There is no express right to re- turn to the bargaining unit in Ar- ticle 6.05 D or any other article of the collective agreement." The agreement allowed for a senior union member to bump a junior worker in the event of a layoff, said Oakley, or when more than one member applied for an open position. But, in this case, Hawkins' se- niority rights' retention of 12 months did not mandate a return back to the unit, only that his se- niority remained intact, accord- ing to Oakley. Union and management might have avoided the arbitration hearing had both sides written a movement clause into the collec- tive agreement, according to the arbitrator. "The parties could have in- serted language stating that an employee promoted outside the bargaining unit had the right to return to a bargaining unit posi- tion within a certain period of time following the promotion," said Oakley. "It is unlikely that the parties would have intended to confer a right for employees outside the bargaining unit to return to a for- mer position, when employees within the bargaining unit do not have such a right. "Therefore, when the collec- tive agreement is considered as a whole, there is no implied right for Hawkins to unilaterally re- turn to the bargaining unit," said Oakley. Reference: Toromont CAT and International Union of Operating Engineers, Local 904. James Oakley — arbitrator. Gregory Anthony for the employer. Johnathan McDonald for the employee. Jan. 12, 2017. < Nurse fired pg. 1

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