Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2017 September 18, 2017 ARBITRATION AWARDS September 18, 2017 Worker didn't take 'all reasonable steps': Arbitrator an extended period of time. On Oct. 6, 2011, Board visited a job site and watched Schwagly in a company vehicle apparently read- ing a book. He was witnessed inside the ve- hicle for 30 minutes on one occa- sion and a few other times that day he was also witnessed as spending time inside the vehicle. Richard Cook, maintenance su- pervisor, also witnessed the same behaviour after being alerted by Board. Cook and Board then met with Schwagly at head office to in- quire as to why he was spending so much time away from the job sites. After the meeting, Schwagly was told a decision would be made on whether to terminate or im- pose another punishment, and he would be advised of that on Oct. 11, after the Thanksgiving week- end. However, a note was received on Oct. 11 from Schwagly's doc- tor, Terry Hartrick, that said he was unable to work for "medical reasons." Schwagly began to receive employment insurance (EI) pay- ments, then weekly indemnity payments and hasn't returned to work at Kone or any other com- pany ever since. In September 2012, he applied for long-term disability from Sun Life after all other payments were ended. On Dec. 20, Sun Life denied the claim because "there is not a sig- nificant medical condition pres- ent that would cause restrictions and limitations that would pre- vent work." The union, International Union of Elevator Constructors, Local 82, appealed the decision on May 23, 2013, and argued because Schwagly had been diagnosed in 2005 with social anxiety disorder and he suffered from generalized anxiety, resulting in panic attacks and depression, according to two different doctors, he was totally disabled. Alan Buchanan, a psychia- trist and clinical professor in the department of psychiatry at the University of British Columbia in Vancouver testified that he con- ducted an independent medical examination on May 25, 2012, and found "Schwagly is not capable of handling the demands of this job as an elevator mechanic." In his report, he suggested the company could accommodate a return to work if it disabled the GPS on Schwagly's phone as it may have been the trigger for his phobia, causing him to leave the job site and not return in October 2011. The employer countered and said there were other companies in B.C. that did not employ GPS on company phones, so Schwa- gly could have worked for one of them;therefore, he was not totally disabled in his own occupation. Arbitrator Michael Fleming upheld the grievance and ordered LTD payments to be made for the period Oct. 9, 2012, to Oct. 9, 2015. "I accept that the definition of total disability encompasses whether Schwagly suffered from an illness which prevented him from performing the main or essential duties of his own oc- cupation and the illness, and the resulting inability to work, was continuous," said Fleming. All of the four companies that were covered by the welfare plan — which was fully portable and used by other companies in the industry — (Kone, Otis, Thys- senKrupp, Schindler) use GPS so Schwagly would "not have been able to return to work with any of them," said Fleming. "GPS was a trigger or, put an- other way, a significant causal fac- tor triggering Schwagly's social anxiety disorder which resulted in his total disability from his own occupation as an elevator me- chanic at Kone," said Fleming. Reference: Kone and International Union of Elevator Constructors, Local 82. Michael Fleming— arbitrator. Maggie Campbell, Mike Hamata for the employer. Theo Arsenault, Ben Arsenault for the employee. Aug. 4, 2017. < British Columbia pg. 1 He was given 10 demerit points as per Peterborough's vehicle occur- rence review and demerit system procedure for what was deemed a "preventable" accident. On Aug. 11, Wood crashed his truck into another vehicle in a parking lot. He was given another 10 demerit points and a written warning. Wood's supervisor ordered him to "pay attention to his surround- ings" and he was sent to a defen- sive driving course after his driv- ing privileges with the city were suspended. Finally, in December, Wood struck a tree limb while driving in another preventable accident. He was given 10 more demerit points and another written warn- ing. The culminating incident hap- pened at about 2 a.m. on Feb. 11, 2016, when he drove a plow through a neighborhood, dispens- ing sand onto the sidewalk. The nine-foot-long vehicle had a blade in the front and a box in the back that held the sand. Because he was primar- ily involved in sanding that night, Wood said the plow at the front was in the up position most of the time. When he left the vehicle to check on the status of the sanding efforts, Wood activated the park- ing brake. Wood estimated he had done the same thing 10 to 20 times that evening without incident. But this time, the plow vehicle travelled downhill and he chased after it. Wood eventually caught up and the vehicle came to rest be- side a tree. Nobody was hurt but the snow- plow suffered extensive damage. An investigation found the park- ing brake failed. The total damage was more than $10,000, so Wood was given another 35 demerit points bring- ing his total to 65. A chart that detailed what punishment should be meted out based on the number of demerits called for a five-day suspension when an employee reached 55 points and possible termination if the figure was 65 points. Brian Jobbit, manager of public works, held a meeting with Wood and ultimately decided to impose the suspension. The union, Canadian Union of Public Employees, Local 504, grieved the decision and argued Wood followed the city's training procedures and he shouldn't have been suspended. Arbitrator M.G. Mitchnick dis- missed the grievance. "Given Wood's poor driving record over the short period that he has been operating the city's vehicles, the level of discipline that Jobbit actually chose to revert to, the risks that the improper se- curing of such a large vehicle rep- resent to the public at any time of day, and the manner in which the discipline has benefited the griev- or in protecting his employment, I am not persuaded to order any adjustments to the penalty ," said Mitchnick. The fact that Wood didn't angle the snow-plow inward or didn't put the blade in the down posi- tion, which might have mitigated the impact, were both common- sense behaviours that should have been done, according to Mitch- nick. "Wood's decision to stop and park the vehicle for inspection where he did, positioned as it was and at a point where the terrain falls steeply away in a variety of directions, in itself calls in ques- tion the amount of thought or judgment that he put into that decision; but apart from that, hav- ing made that judgment, it was incumbent upon him to take par- ticular care to take all reasonable steps available to him to provide back up for the parking brake," said Mitchnick. Reference: Peterborough (City) and Canadian Union of Public Employees, Local 504. M.G. Mitchnick — arbitrator. Vincent Panetta for the employer. Bev Newman for the employee. Aug. 25, 2017. < Peterborough pg. 1

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