Canadian Labour Reporter

June 12, 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 12, 2017 D.B. had worked for the com- pany since 2006, gaining full- time status in 2009, and he was working on the overnight clean- ing crew with five or six other employees. His job was to sani- tize machinery that was involved in packing food products. "H.R.", a human resources employee, was advised of the breaches of the company's access card policies on June 16 or 17. He held a meeting with D.B. on June 23 and asked him: "Is there any reason why you forced open locked doors to enter and exit the plant instead of using your swipe card?" D.B. responded: "I did not want you guys to know I was go- ing out for a smoke." In his termination letter, the employer accused D.B. of "a severe breach of security and trust" for 14 acts of misconduct (including vandalism by forcing open magnetic doors) over the previous two weeks, which was the limit of how long the com- pany saved security videotape recordings. But the union grieved the fir- ing and said it was excessive. "U.P.", president of the union local, said many employees have allowed other employees to "tail- gate" into the premises without swiping their own cards and he admitted he had done so on at least one occasion. "U.C.S.," chief shop steward, also testified to witnessing doors being propped open in the past. The union said there was a company culture that regarded the practice of tailgating as nor- mal and accepted. Arbitrator John McEvoy or- dered D.B. reinstated without compensation for lost wages and benefits, but recommended that "D.B. be provided an orientation to refresh his understanding of employer policies and to learn about any changes to existing policies and the adoption of new policies." "D.B. must understand that his actions had the potential to put at risk the employer's business and the employment of every mem- ber of the bargaining unit. This is serious and worthy of a serious but proportionate disciplinary response," said McEvoy. The urination was only an act of misconduct, and not worthy of termination, he said. "The act here was an isolated event. It occurred outside the fa- cility in the overnight darkness (the evidence does not indicate the stairs landing area was light- ed); it was not witnessed by any- one but was video-recorded; the machinery cleaning duties per- formed by D.B. required him to wear heavy gloves to protect his hands and arms from the caustic chemicals in the cleaning sup- plies; there is no evidence that D.B. thereafter contaminated by touching, with his bare hands, any relevant machinery; and D.B.'s duties related to packaging not production of food items." Reference: Company and Xyz Union. John McEvoy — arbitrator. March 9, 2017. Female bus driver dismissed after three instances of 'inappropriate' sexual behaviour with male colleague A BURLINGTON, ONT., bus driver was accused of sexual ha- rassment after she danced sug- gestively, rubbed her finger over a co-worker's bald head and made lewd comments in the presence of another driver. Susan Catherwood had worked at Burlington Tran- sit since 2012. In 2015 or 2016, co-worker and transit operator Daniel Alfaro said Catherwood danced suggestively near him and then approached him while he was in the lunchroom. He initially said the "front of her leg came in contact with his body," but he later changed his story and said, "It could be that she just rubbed her feet against mine." In a statement he signed about the incident, he said: "I believed she was flirting with me because her movements towards me could be described as twerking." However, Catherwood testi- fied it was a Friday and she was doing a "celebratory, happy dance" that was not directed to- ward Alfaro. Soon after the dancing inci- dent, Alfaro said Catherwood rubbed her wet finger over the back of his bald head, causing him to jump up because he said it startled him. Catherwood said "yummy," and this caused other workers in the lunchroom to laugh. Again, Catherwood testified the incident was overblown and not meant to be sexual. She said her hands were wet due to hand cream she had recently applied. In the third incident — report- edly about a week later — Brad Lichty, union president, and Alfaro overheard Catherwood in conversation with Jennifer Mc- Gowan (who had a previous ro- mantic relationship with Alfaro and had accused him of harass- ment) talking about an erection. Catherwood then said, "This is how you clear the room," as Alfa- ro and Lichty walked out. After an investigation, the em- ployer terminated Catherwood on June 15, 2016, because of the organization's hard line against any sexual harassment. "I don't know of anybody else found to have sexually harassed who hasn't been terminated," said Le- anne Sneddon, the City of Burl- ington's human resources man- ager. The union, Canadian Union of Public Employees, grieved the firing and argued the city should have employed progressive dis- cipline due to Catherwood's pre- viously unblemished discipline record. Arbitrator Lorne Slotnick up- held the grievance and ordered Catherwood to be reinstated with a two-day suspension in lieu of the dismissal. "I find that sexual harassment by Catherwood against Alfaro has not been established, al- though some of Catherwood's behaviour was inappropriate. Catherwood testified that she will stop dancing in the work- place, and I believe she appreci- ates that running her finger over Alfaro's head was wrong and un- welcome." Previous incidents may have further muddied the situation, suggested Slotnick. "Catherwood was the com- plainant in two of the three sexual harassment allegations against co-workers that resulted in dis- missals after the complaints were substantiated. One of those was the union local president. It is not a stretch to suppose that some of Catherwood's co-workers might have a score to settle." And there were inconsisten- cies that clouded Alfaro's cred- ibility. "Alfaro's story changed through the investigation pro- cess. His initial statement as- serts that Catherwood came into contact with him while she was dancing. It says nothing about Catherwood saying 'yummy' when she touched his head. Both these important aspects of the story changed when he was inter- viewed by the investigator," said Slotnick. Alfaro may have been proac- tively trying to solidify his posi- tion within the union because there were two factions involved in local infighting. "These com- ments should have alerted the employer that Alfaro's motives could well have been not as prin- cipled as he represented, and that he may have been motivated to embellish his story to portray Catherwood as a dissolute wom- an prowling around the work- place," said Slotnick. Reference: Corporation of the City of Burlington and Canadian Union of Public Employees, Local 2723. Lorne Slotnick — arbitrator. Jane Gooding and Megan Beal for the employer. Dean Mainville for the employee. May 24, 2017. < Smoke breaks pg. 1

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