Canadian Labour Reporter

7 Canadian HR Reporter, a Thomson Reuters business 2017 CANADIAN LABOUR REPORTER ARBITRATION AWARDS Employer wanted schedule flexibility with two positions Mager to stop the behaviour. The following day, on May 13, Mager pushed the same techni- cian. Groves sent Mager home. He placed a note in his employee file, but it wasn't signed and it was con- sidered a disciplinary note. Groves testified that because Mager was highly skilled and pro- ductive, Groves often overlooked his poor behaviour. In 2016, Mager and his wife separated. On Oct. 28, Mager and another technician got into a dis- agreement as Mager insulted and threatened him. Groves issued a disciplinary let- ter on Nov. 1 that read: "Threats at the workplace are not accept- able and will not be tolerated. Any further incidents will result in sus- pension." This letter was signed. More complaints ensued and on Dec.19, Groves issued another letter that gave Mager two choic- es: Take time off until Jan. 9, 2017, or be dismissed immediately. It was signed by Mager and he went home for two weeks. After returning to work, Mager again became involved in an alter- cation with the same technician on Feb. 2, 2017. Another note was placed in his file, but no disciplin- ary action was taken. The final event happened on April 26 when Mager approached another technician about parking in his "fucking parking spot" and he said he better move the vehicle. Mager called him a "fucking idiot" after he refused to move. No manager spoke to Mager and the following day, he encoun- tered the same technician in the stairwell and made physical con- tact and called him a name. Scott Groves, service man- ager and son of the owner, issued a dismissal letter on April 28 that read: "You have had many writ- ten and verbal reviews regarding your negative and abusive behav- iour towards other employees. To date, these reviews and suspen- sion have failed to have a positive impact on your behaviour." However, on May 3, Groves met with Mager and advised him he could return to work, but only if he promised to modify his behav- iour moving forward. If all employees agreed after a meeting, Mager could return. A May 9 meeting was arranged and Mager promised to behave and he explained he was going through therapy to help him cope with his marriage dissolution. Afterward, three of the eight employees rejected a return for Mager and on May 10, the deci- sion to terminate was made. The union, United Steelwork- ers Local 1-2017, grieved the termination and argued the lim- ited number of disciplinary state- ments in a long-serving employ- ees' file didn't justify termination. Arbitrator James Dorsey up- held the grievance and ordered Mager serve a two-week unpaid suspension and be reinstated. "I make this determination be- cause of the supportive consider- ation and accommodation he has received from Dennis, Scott and Cameron Groves over the years and to impress upon him the re- sponsibility he must take for the aggravation they have endured," said Dorsey. Mager's age and generation was no excuse for his behaviour, said the arbitrator. "Hopefully, Mager will learn from this discipline that his role is not to model old-school, male- workplace behaviour and to re- sent and resist change, but to be a mentor, or, at least a model, for new technicians, even if he re- mains taciturn and abrupt in his manner," said Dorsey. Management should have been more diligent in its efforts to correct Mager's past actions, said Dorsey. "One consequence of Mager's limited disciplinary record is that the misconduct in April 2017 cannot be treated as a culminating incident justifying dismissal when it would not oth- erwise justify dismissal." Reference: Coast Mountain Chevrolet Pontiac Buick GMC Ltd. and United Steelworkers Local 1-2017. James Dorsey — arbitrator. Glenford Emerson Greene for the employer. Colin Gusikoski for the employee. Sept. 1, 2017. < Auto mechanic pg. 1 five full-time positions at the hos- pital. Misken's disability trans- formed her position into two part- time LPNs. The shifts were organized to coordinate evenly with each other so neither nurse was working at the same time. In August 2015, Misken's po- sition became vacant and it was posted as a part-time job. On Sept. 4, MacPhee applied for the position and wrote in an application letter that if she was hired into the position, "This would enable me to work full-time hours on the restorative care unit. In no circumstance do the two po- sitions conflict, as I am working the other half." At the time, MacPhee was working a temporary full-time position to replace another LPN who had left, but she wanted to work the part-time shifts. On Sept. 16, she emailed James Pritchett, patient care manager, and added a note that read: "I un- derstand you do not wish to com- bine the two .5 positions but I did already apply and was wondering if I will be re-interviewed in the top five or will my last interview be counted, as I would like the ex- perience." The following day, Pritchett responded: "Since I will not be combining the positions, re-in- terviewing you for the position would be moot. We do not inter- view candidates who are not being considered for the position." Pritchett testified the hospital wanted to maintain the two part- time positions as separate to help manage its scheduling. But MacPhee replied on Sept. 19 and grieved the decision, say- ing, "I was not given the opportu- nity to interview or even be con- sidered for this position. I feel this is unfair and unjust." The grievance was denied and Laura Holloway, the only other candidate, was awarded the po- sition on Oct. 26, despite hav- ing only one year of seniority to MacPhee's nine years. The Nova Scotia Nurses' Union grieved the appointment and ar- gued the right of seniority is para- mount in hiring decisions, and it wasn't respected in this case. In upholding the grievance, arbitrator Augustus Richardson ordered the employer to consider MacPhee's application and if she was successful, the two positions wouldn't be combined into one. "The two part-time positions were created out of a complex scheduling system that had been in place for a long time. In the ab- sence of any compelling reason to the contrary, I see nothing in the collective agreement or the his- tory of scheduling on the unit that requires a conclusion that an em- ployee who held both these par- ticular part-time positions would convert the two into one full-time position," said Richardson. Because there was nothing in the collective agreement that would al- low the employer to reject a candi- date, MacPhee's application had to be considered, said the arbitrator. "Clear wording in a collective agreement would be required to bar an employee from apply- ing for and holding two positions at the same time, at least where there would be no conflict in two work schedules, or where no seri- ous operational concerns would be raised by such a situation," said Richardson. MacPhee's unique position in the schedule made her a worthy candidate, he said. "MacPhee was arguably the only part-time employee who would be in a position to combine an existing part-time position with the posted position. That was be- cause her existing schedule was one that had been created with the express purpose of matching the other 'half ' of the line on the schedule," said Richardson. Reference: Nova Scotia Health Authority and Nova Scotia Nurses' Union. Augustus Richardson — arbitrator. Tracy McPhee for the employer. Jillian Houlihan for the employee. Sept. 18, 2017. < Nova Scotia pg. 1

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