Canadian Labour Reporter

June 5, 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 June 5, 2017 May to December, but on Feb. 1, 2017, Marc-André Thériault, pro- duction and quality supervisor at Berger, decided the company needed to activate three machines early for a special two-week pro- duction run. On Feb. 6, Thériault made a phone call to Savage's home. When no one answered, he left a message on voice mail asking Sav- age to call back. Another call was made the next day and Thériault reached Sav- age's common-law spouse, Jessie Lynch, with whom he had lived for 11 years. Thériault asked Lynch to have Savage return his call, but he said he didn't provide any specifics about why he called because "it is not the employer's practice to dis- cuss such matters with anybody else but the employee." Lynch told Thériault that Sav- age was in Rosaireville, N.B., to assist his parents, who lost power due to an ice storm. Thériault tes- tified that he didn't recall hearing any such news that day, only that Savage wasn't available. He tried calling the home phone number one last time on Feb. 9, but again was unsuccessful and left a message. Thériault testified he didn't call Savage's cell number because he said the company usually had more luck reaching workers at home. The next step in the recall pro- cess was then initiated as Théri- ault sent a notice via Canada Post. The letter indicated that Savage had to respond by Feb. 17, before 4:30 p.m., or he would have been considered to have abandoned his position as per the collective agreement, and terminated. After multiple attempts at de- livery, the letter was still not re- trieved. Savage said he attempted to reach Thériault on Feb. 20, and left a voice mail: "My mailbox's in the ditch and I just went out and got the thing from the post office saying that I basically have no job now I guess cause it says that I had to contact you guys by the 17th and Jessie said that you contacted me but nobody left a message." He called back again the next day and twice left a message. Savage tried to explain to Berg- er that Canada Post's tracking sys- tem showed he first received the letter on Feb. 20. A Feb. 21 termi- nation letter was drawn up. Arbitrator Michel Doucet up- held the grievance and ordered Savage to be reinstated. "While I accept that the evidence did es- tablish that the grievor was not at home when Thériault called, I fail to see any reasons why he did not leave a clear message on the an- swering machine and to Lynch as to the purposes of his calls." The argument for keeping Sav- age's employment private from his common-law partner was dis- missed by Doucet. "I can understand that this could be the case if the employer is uncertain about the relation- ship that the person it is talking to has with the employee or if it is addressing matters of a very per- sonal nature," said Doucet. "However, this is not the case here and I cannot understand why telling Savage's spouse that it was urgent that they talk to the grievor because they were in the process of a doing a recall would have in- fringed on any privacy issues." Reference: Les Tourbières Berger and United Brotherhood of Carpenters And Joiners, Local 1386. Michel Doucet — arbitrator. Hélène Beaulieu for the employer. David Mombourquette for the employee. May 8, 2017. Furnace operator fired after dangerous incident WHEN A lead-melting furnace reached critically high tempera- tures, written procedures at Teck Metal's Trail, B.C., plant called for an emergency tap (E-tap) to allow the slag to cool and mitigate any further danger. But on Feb. 15, 2017, furnace operator Kevin Watson failed to initiate an E-tap that could have been potentially deadly for two other co-workers. "As a result of your failure to fol- low the procedures, you placed at least two of your co-workers in an extremely unsafe situation. This procedure was developed as a re- sult of previous explosions. Had there been an explosion in this situation, your co-workers could have been seriously injured or worse," said a letter of termination given to Watson on March 1. In 2013, an explosion hap- pened in the same area and an em- ployee was seriously injured. This prompted Teck Metal to write specific instructions for dealing safely with overheated slag. During the day in question, Watson worked as the process control operator at a flash furnace smelting lead ore. Once the ore was melted at 1,400 C, it was drained into a large vat. At 2:04 p.m., a breakout hap- pened and shift engineer Ken Tichauer went to help assist two other colleagues on managing the flow. At 2:15 p.m., Tichauer told Watson via radio "they couldn't get it shut off." At 2:18 p.m., Chris Korman- dy, production superintendent, noticed something wrong and phoned Watson to see why he wasn't running an E-tap. Eventually, the crisis was avert- ed but after the shift, employees wrote notes about any issues faced. "I didn't get the feeling Kev- in felt this was an emergency tap," wrote Kormandy. On Feb. 22, a meeting was held so Watson could be questioned about his actions. During the meeting, Watson said he was in the process of start- ing an E-tap when questioned by Kormandy. But later that day, he wrote an email further explaining his ac- tions. Watson claimed he was try- ing to give the other workers the chance to stem the excess flow be- fore initiating the E-tap. When Watson was terminated, he was under the company's dis- cipline program which placed him in step four. He was told any further safety-related discipline could result in his termination. The union, United Steelwork- ers, grieved the dismissal and ar- gued termination was excessive. Arbitrator David McPhillips disagreed and upheld the firing. "There should have been no real confusion on Watson's part with respect to the proper pro- cedure to be followed. Even if the procedures somehow did apply and two attempts at shutting off the breakout could have been jus- tified, it was abundantly clear that by 2:15, those attempts had failed and an E-tap should have been commenced at that point," said McPhillips. The explanatory email sent af- ter the meeting was a further in- dicator that Watson didn't believe his actions was wrong, according to McPhillips. "To repeat Kormandy's observa- tion, it does not appear that Wat- son has truly 'taken ownership' of the problem. While he has admit- ted he made a 'mistake', he has re- peatedly attempted to downplay its significance rather than explicitly and unequivocally acknowledging that he exercised very bad judg- ment on the day in question." Watson also felt the company should bear some of the respon- sibility for how the incident was managed, said McPhillips. "Watson's response in cross- examination about his knowledge of the proper procedures to be fol- lowed was that he had 'had train- ing, if you can call it that' and that is very problematic. This appears to be another, and very unfair, at- tempt to deflect responsibility, this time to management's alleged poor efforts in explaining to him the newly updated procedure. (It should be noted there is abso- lutely no evidence to support that assertion on his part.)" Reference: Teck Metal and United Steelworkers, Local 480. David McPhillips — arbitrator. David McDonald for the employer. Craig Bavis for the employee. May 17, 2017. < Peat moss pg. 1

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