Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2017 ARBITRATION AWARDS September 4, 2017 Termination 'excessive response' to mistake: Arbitrator question named Mark Miller, but the driver of that shipment had that name. Const. Charlene Gladue vis- ited Miller's house and found only his son was home. The son called Miller who spoke with Gladue the next day. She arrived back at his home July 27 to retrieve the stolen property. At no time did Miller contact Greyhound to inform them of what happened. On Aug. 18, Gladue emailed Scott to update him on the inves- tigation: "His story to me (over the phone) was that he bought it from a guy on the street near the bus station, but couldn't give any de- scription of this person." The company directed Protect Security to conduct an investiga- tion on Aug. 29. Miller was suspended with pay on Sept. 1. After a telephone call and a meeting, Miller was terminated on Sept. 16 by letter, which read: "You are in possession of stolen property and to suggest that by random chance a shipment in the possession of your employer was purchased on the street a day or two after it went missing from our facility is absolutely not credible and a woefully inadequate expla- nation of how the shipment came into your possession." It further stated that Miller's "conduct and behaviour are a breach of employee trust." The union, Amalgamated Transit Union, Local 1374, grieved the decision and argued there was no proof that Miller knew the box was stolen or went missing from Greyhound. Gladue testified that Miller couldn't provide a description of the man he bought the flies from for $150, during her initial conver- sation, but when he later testified, a detailed description of the man Miller claimed sold him the box was provided. Arbitrator Lyle Kanee dis- missed the grievance. "Miller's dishonesty is 'fundamentally or directly inconsistent' with his employment obligations to Grey- hound. Termination is a just and reasonable penalty in all of the cir- cumstances." The testimony provided by Miller was crucial in establishing his lack of credibility, according to Kanee. "Miller's description of the seller and the sales transac- tion became clearer and more detailed with the passage of time. Initially, he expressed an inabil- ity to describe the seller at all but by the time of the hearing, a very specific, detailed description of his looks, height, complexion, and clothing was provided. Similarly, very little detail about his conver- sation with the seller was provided before his testimony on June 2." And Miller's account of the transaction was not credible, ac- cording to the arbitrator. "He claims not to be suspicious in this case, after someone on the street, about a block from the Greyhound station, sells him a box of flies with a wholesale value of $4,500 for $150 and claims he got it from a friend who owed him money," said Kanee. Reference: Greyhound Canada Transportation and Amalgamated Transit Union, Local 1374. Lyle Kanee — arbitrator. Michael Ford for the employer. Jim Fyshe for the employee. Aug. 14, 2017. < Fishing equipment pg. 1 Vince Harper, general foreman, testified he briefed Neumann and Friesen that night and specifi- cally told them stainless steel bolts were to be used on the gates. He said he pointed out where the rods were located and he re- ceived assurances the work would be done properly and the stainless steel bolt anchors would be used. Harper said he received a call after he left the site from Neu- mann asking about the location of the anchors. He said the informa- tion was relayed and he told Neu- mann, "not to forget about the stainless anchors." Dan Pelletier, general foreman at Keeyask, testified he spoke with Neumann and Friesen about 10:30 p.m. on the night in ques- tion and reminded both of them, "Don't forget about the anchors." When Harper returned to the site the next day, around 8 a.m., he reviewed the installation and dis- covered that mild steel bolts were used, instead of stainless steel ones. When Harper contacted Neu- mann to inquire about the faulty installation, he received a text message that said: "Sorry Vince I fucked up and take the responsi- bility for the stainless not going in there. Sorry." A concrete pour was scheduled but it could not be completed on time due to the error, according to Harper. Tim Nichols, an ironworker/ welder, also testified that he un- derstood which type of anchor bolts had to be installed. But later when he talked with Neumann, he said he understood that mild steel would be substituted, instead of the stainless. Nichols said he repeatedly mentioned throughout the shift that stainless is the usual material, but when he said it to Neumann, he was told, "I talked to Vince (Harper). All's good." Neumann testified he remind- ed Nichols earlier in the shift that stainless steel was to be used. "As foreman, it is my responsibility to ensure the guys are installing the right materials. I thought proper materials were installed," he said. Friesen testified he assumed the workers would have used the correct material, but he didn't specifically confirm it. After an investigation, the pair were terminated via letter on Nov. 14: "Due to your failure to follow the work plans as per the blue- prints and your failure to follow the work instructions provided to you by your general foreman, resulting in major re-work being required, your employment with the company is terminated." The union, International Asso- ciation of Bridge, Structural, Or- namental and Reinforcing Iron- workers, Local Union 728, grieved the termination the following day. The union argued other errors were made at the site and the long hours and remote location meant a standard of perfection was un- fair. Neither worker had any previ- ous discipline on record. Arbitrator Karine Pelletier up- held the grievance and ordered the company to reinstate the pair and make restitution for the lost time. "I find that the termination of the grievors' employment was an excessive response to the miscon- duct of the grievors. To be clear, their conduct was a dereliction of duty, but taken together with their previous good work record and acknowledgment of responsibil- ity, along with the discriminatory treatment in the issuance of disci- plinary action by BBE, it was not so sufficiently severe as to cause an irreparable breach of the em- ployment relationship," said Pel- letier. A written warning should be given, instead of termination, said the arbitrator. "The grievors were clear in their evidence that they under- stood that stainless steel was to be installed, and neither ensured that the proper materials had been utilized. The grievors under- stood the importance of the use of stainless steel rather than mild steel. The grievors committed an important error that ultimately necessitated a fix that had con- sequences for the employer," said Pelletier. Reference: BBE Hydro Constructors and International Association of Bridge, Structural, Ornamental and Rein- forcing Ironworkers, Local Union 728. Karine Pelletier — arbitrator. Kristin Gibson, Bret Lercher for the employer. Shannon Carson, Katie Haig-Anderson for the employee. March 28, 2017. < Improper installation pg. 1

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