Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2017 October 23, 2017 ARBITRATION AWARDS ent sites across the district. On Aug. 24, 2016, Neal Kin- skofer, manager of mechani- cal maintenance, met briefly with Jaworski to talk about the posi- tion. After the meeting, he wrote: "Didn't do formal interview as dis- cussion led straight into absentee- ism and not a fit for the district." Even though Jaworski was the most senior applicant, he wasn't considered due to his attendance rate, which was just below 70 per cent. Kinskofer said that because the crew was responsible for chang- ing about 2,500 pieces of equip- ment on a regular basis — 1,125 of which required two persons to complete — he could not rely on Jaworski due to his union commit- ments. Kinskofer said that at the time of the interview, he reviewed Ja- worski's attendance and found he had booked off 43 out of 140 days of work during the previous nine months and 35 days were for union business. After the meeting, Kinskofer said to Jaworski: "If your union absenteeism will remain, we sim- ply can't take you into this depart- ment as it is not in the best inter- ests of district and occupants' health." He explained that because the crews work in cramped and dan- gerous areas inside some schools, there is a risk children might find their way into those places if there is not a second worker to help watch any open ducts. With Ja- worski's poor attendance record, the district didn't have enough spare board workers to replace him on a regular basis. The union, Canadian Union of Public Employees (CUPE), Lo- cal 728, grieved the decision and argued the district should create a spare board of qualified filter- crew workers so Jaworski could continue his union duties and be- come a member of the crew. CUPE said the district had a dusting crew spare board that was created after a 2011 letter of un- derstanding. A similar one should be constituted for the filter crew, according to the union. Jasbir Muker, a member of the filter crew, testified a spare board worker would have to undergo about a month of training to be sufficiently qualified for the posi- tion. He said the worker would have to memorize individual units in all of the 133 sites, as each has its own unique characteristics. Kinskofer also testified that other options such as creating a part-time filter crew worker were considered in order to accommo- date Jaworski's union duties but because his commitments were often last-minute decisions, this would cause a difficulty in sched- uling that worker to replace him. Arbitrator Nicholas Glass dis- missed the grievance. "If at some point Jaworski decides to reduce the level of his union responsibili- ties, and attendant absences, to a level well below 30 per cent or 50 per cent (current levels over the past two years), he will of course be eligible as senior applicant to be considered on any future post- ings for this position." Jaworski would have to choose whether he wanted to continue with his union work or the filter- crew position, according to the arbitrator, "The central fact was Jaworski's position as second vice-president of the union and his continuing intention to carry out the duties required for that position, with- out curtailing them in any way, whether he was awarded the posi- tion or not," said Glass. "His intentions were clear and in carrying out those intentions to date, he was at the time of his application unqualified for the position, and it was a reasonable conclusion on the part of the em- ployer that he would continue to be unqualified for the position planning as he was, and frankly admitting he was, to carry on with his union responsibilities without curtailing them." Reference: School District #36 (Surrey) and Canadian Union of Public Employees, Local 728. Nicholas Glass — arbitra- tor. Peter Csiszar for the employer. Carmela Allevato for the employee. Aug. 25, 2017. but when he was asked if he ever ate anything, he said he may have eaten a chocolate bar on two occa- sions during his time at Metro. Hann asked him if he did so on Feb. 1, and Raimondo replied he might have. When asked for an ex- planation, Raimondo said the box was broken and it was going to be thrown out, so he didn't see the harm in taking one chocolate bar with a retail value of $2.49. But Hann pointed out the com- pany circulated a long-standing memo — which was updated on Jan. 26, 2016 — that read: "The shrinkage due to theft, grazing or consumption of product increas- es the financial burden already be- ing experienced due to hard eco- nomic times. It is imperative that these practices stop immediately! Theft includes theft of company property, grazing and pilfering. An employee committing any of these offences will be terminated." The memo was signed by all workers in the distribution centre, including Raimondo, according to Metro management. Despite his pleas for leniency during the interview, Raimondo was terminated on Feb. 10. Hann testified that two other employees were also terminated that day for theft of chocolate bars. The union, Unifor, Local 414, grieved the decision and argued Raimondo's long service of 13 years and his previously unblem- ished record should have entitled him to lesser punishment. Raimondo testified he initially denied the theft because he wasn't quite sure of the definition and he believed it was acceptable to con- sume product destined for the garbage. Raimondo acknowledged the theft eventually and claimed he exercised "bad judgment" when he took the bar. But Hann testified that Metro did not throw out all products when a box was damaged. If it could be repackaged and put out for sale it usually was, he said. Or if the package was beyond salvag- ing, it was sent back to the suppli- er for a refund, said Hann. Arbitrator Michael Bendel dis- allowed the grievance and upheld the termination. "I do not quarrel with the argu- ment that this was a 'momentary aberration' by an otherwise val- ued and honest employee. I do not regard him as a fundamentally dishonest person, merely a person who, for whatever reason, gave in to the temptation of obtaining a chocolate bar for free," said Ben- del. Raimondo's long service was considered, but his time with Metro was not as long as other similar cases where it made a dif- ference, said Bendel. "It is a sad case and I feel sorry for (Raimondo). But I am satisfied that it would be wrong to allow my natural sympathy for him to take precedence over the employer's legitimate interest in holding a firm line on employee theft so that other employees will thereby be deterred from engaging in such behaviour." The employer's legitimate busi- ness concern of stopping employ- ee larceny must be respected, said Bendel. "Where there is a valid employ- er interest in adopting and en- forcing a firm policy on employee theft, and where the policy has been adequately brought to the attention of employees, the rein- statement of the employee would undermine the employer's legiti- mate interest in deterring employ- ee theft. It is not appropriate for the arbitrator to 'exercise compas- sion' and reinstate the employee in the face of a disciplinary measure that is just and reasonable." Reference: Metro Ontario and Unifor, Local 414. Michael Bendel — arbitrator. Chuck Robertson for the employer. Doug Orr for the employee. Sept. 29, 2017. Worker not interested in 'curtailing' CUPE role: Arbitrator < Toronto pg. 1 < Surrey pg. 1

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