Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2017 November 6, 2017 ARBITRATION AWARDS No 'practical guidance and instruction' available: Arbitrator your employer." The Canadian Office and Pro- fessional Employees Union, Lo- cal 343, grieved the decision and argued the message was innocu- ous and did not constitute gross misconduct, which was a reason an employee could be fired and not paid during the arbitration process. The union did not argue the merits of the termination, but only the ruling that Clee engaged in gross misconduct. At the time of the tweet, Clee had three other disciplinary ac- tions on her record (a warning let- ter from October 2016, a one-day suspension in January 2017, and a written warning from February 2017). A meeting was scheduled to discuss the latest incident. Clee had worked in the office since shortly after the 2014 On- tario election, after working on Sattler's campaign. At the con- ference, which took place from March 24 to 26 in Port Elgin, Ont., Clee went as a union delegate. Carrol Anne Sceviour, the OFL's human rights and women's direc- tor, testified attendees were en- couraged to send out messages via social media about working con- ditions — with the words: "I want decent work because…" — to their local MPPs. As she lived in the London West riding, Sattler was Clee's provincial representative. When she first saw the tweet, Sattler liked it via the Twitter check box. But later, she reflected that the message may have been directed at Sattler as an employer, especially considering the impending disci- plinary meetings. Sattler removed the like the next day. Clee was suspended on March 27. On April 10, during a meeting, Clee said she felt the tweet was blown out of proportion and she thought it was a "railroad job" the way the employer was treating her. However, Sattler character- ized the message as "like a punch in the gut; I was very troubled by that tweet." Clee didn't acknowledge that the tweet was inappropriate but said that she may have raised her voice during the meeting: "I'm a loud person." A termination letter dated April 18 said: "Your failure to reconsider the tweet and remove it after the March 30, 2017, meeting is a defi- ant reaffirmation of your attitude towards your employment with caucus. It is beyond us why you chose to leave the tweet posted. Again, this decision shows poor judgment and a lack of investment on your part in fostering and hon- ouring your continued employ- ment relationship with me." Arbitrator Lorne Slotnick ruled the tweet did not constitute gross misconduct, but he didn't rule on the termination. "There is no doubt that Clee could have handled the situa- tion differently. She could have shown more understanding of the employer's interpretation of her tweet, and she could have removed the tweet a lot earlier than she did. Again, these considerations may weigh in the ultimate assessment of whether the termination was justi- fied or whether reinstatement is a viable option in this case, but they do not lead to a conclusion that Clee has engaged in gross miscon- duct," said Slotnick. Clee's reaction to the meeting and her subsequent outburst did not meet the definition of gross misconduct, according to the ar- bitrator. "While some of the comments were not diplomatic, diplomacy is not a requirement of union-man- agement meetings, nor can it be the basis of an allegation of gross misconduct in these circumstanc- es. The employer's argument that Clee did nothing to repair the em- ployment relationship, and in fact sabotaged it with her post-tweet conduct, may be relevant to the ultimate disposition of the case, but is not a significant factor in an assessment of gross misconduct," said Slotnick. Reference: Ontario New Democratic Party Caucus and Canadian Office and Professional Employees Union, Local 343. Lorne Slotnick — arbitrator. Meg Atkinson for the employer. Glenn Wheeler for the employee. Oct. 18, 2017. < NDP pg. 1 department and who may be re- quired to supervise," but on April 1, 2013, they were put into new positions. Grade 1 therapists were catego- rized as "an occupational thera- pist working under the general su- pervision of another occupational therapist." As a result of the move, the therapists were slotted into a dif- ferent pay structure, although their positions were red-circled and they continued to be paid at their original salaries. However, the union, the B.C. Government and Service Employ- ees' Union grieved the new clas- sification and argued the workers did not work under close supervi- sion, but performed some of their work alone. The therapists worked as para- medicals for patients who were looking to re-enter the workforce. The patients suffered from mental health or substance abuse issues, which the six therapists treated. All of the therapists under the new classification reported to Klaus Mey, professional practice leader for occupational therapy, under the new structure. Sheeley testified that one time a patient required medication to treat paranoid schizophrenia, so she asked Mey how to obtain new pills. Because the question was beyond his abilities to fully an- swer, Mey referred Sheeley to the acting manager for community mental health, a registered nurse, and received proper guidance. Kitamura testified she worked with Mey for years, but he didn't write a mental health exam that was one of four ongoing tests re- quired by the College of Occupa- tional Therapists of British Co- lumbia. Therapists chose one of the four disciplines and complet- ed the test, but Mey never wrote the exam under the mental health category. As a result, according to the union, the therapists were os- tensibly supervised in a general manner by Mey, but because he could not provide certain specific instructions when something out of their competency came up, the therapists were essentially work- ing under the grade 2 structure. Arbitrator John Kinzie up- held the grievances and ordered "wage rates and benefits should be adjusted accordingly and they should be compensated for any lost wages and benefits suffered as a result of their positions being wrongly reclassified." Because Mey was not able to provide the paramedical workers with specific guidance to amelio- rate their workload, the therapists' jobs were more challenging. "In my view, the six positions occu- pied by the grievors are required to work without general supervi- sion. Thus, the classification of their positions at the grade 1 level is not justified and for the same reason their positions are more appropriately classified at the grade 2 level," said Kinzie. Mey wasn't able to offer the therapists actual supervision when certain issues arose, accord- ing to Kinzie. "Based on the evidence I have heard, the grievors are perform- ing their work in mental health and substance use without gen- eral supervision. There has been no supervisor identified who is within the Allied Health West de- partment who is capable of pro- viding the grievors with the prac- tical guidance and instruction they need to address 'unclear situ- ations and/or those which deviate from established practices and procedures' pertaining to mental health and substance use issues," said Kinzie. "The supervisor identified by the employer for this role, i.e. Mey, does not, in my view, have the training and experience to pro- vide that guidance and instruc- tion," said Kinzie. Reference: Interior Health Authority and B.C. Government and Service Employees' Union. John Kinzie — arbitrator. David Louie for the employer. Britt Skinner for the employee. Aug. 25, 2017. < Kamloops pg. 1

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