Canadian Labour Reporter - sample

7 Canadian HR Reporter, a Thomson Reuters business 2017 CANADIAN LABOUR REPORTER ARBITRATION AWARDS Alexander witnessed Makar stealing tea again on Feb. 27 and on two subsequent occasions. Al- exander informed Fred Massee, Safeway's loss prevention man- ager, that Makar had consumed items without paying for them. Massee reviewed security foot- age and he detailed 12 occasions when Makar removed tea, snacks and empty cups from Starbucks, which was against the company's zero-tolerance policy. Massee had an interview with Makar on March 4 and provided him with the evidence as well as a written statement from Alex- ander. In Massee's report, he said Makar only responded, "I feel bad," and that he didn't express any remorse about the thefts. During testimony, Makar said, "I don't know. I should have paid for it. I knew it was wrong. I was confused." He blamed his type-2 diabetes and he reported that he was feeling weak and confused and needed to eat a marshmal- low-based snack to boost his glu- cose levels. As well, he said he had been fighting a cold for three months and due to his compromised im- mune system, he was weak and feeling cold, so the tea helped him. Makar also replied he may have stolen bulk nuts from the store using an empty Starbuck's cup. He was also questioned about a bag that he claimed was shredded cheese that he was returning to its place. When Makar was asked if that bag could have been potato chips, he replied: "Could be," but he ac- knowledged that eating chips would not alleviate his glucose problem. Makar was terminated on March 23 for "violation of com- pany policies including the hon- esty and integrity policy and the employee-purchase policy." The United Food and Com- mercial Workers (UFCW), Local 401, grieved his termination and argued because Makar acknowl- edged the theft, combined with his long service of 45 years with no discipline, his punishment should have been a suspension and not outright dismissal. Arbitrator Dev Chankasingh dismissed the grievance and said the termination was justified. "This is a very sad case. An em- ployee with 45 years of service for the same employer, close to retire- ment age, should have continued his employment to retirement and ended his career on a happy note and with the employer's gratitude for long service from a dedicated employee. Instead, by his actions, (Makar's) employment has ended prematurely and with a signifi- cant blemish on his otherwise- clean employment record," said Chankasingh. It was not just a one-time oc- currence, said the arbitrator: The evidence showed that Makar com- mitted multiple acts of deceit. "While I am sympathetic to (Ma- kar's) circumstances, his repeated acts of theft of tea and the marsh- mallow snacks, combined with his untruthfulness about the bag of chips and his noncommittal tes- timony, lead me to conclude that the employment relationship be- tween (Makar) and the employer is irreparably broken and cannot be rehabilitated," said Chankas- ingh. And Makar had at least two chances to confess, but he didn't, according to Chankasingh. "(Ma- kar) had an opportunity during the interview with Massee to come clean about his theft of the bag of chips. He did not do so. (Makar) also had an opportunity in his examination-in-chief to ad- mit to stealing the bag of chips. He did not do that." Reference: Sobey's West (Safeway Operations) and United Food and Commercial Workers, Local 401. Dev Chankasingh — arbitrator. Damon Bailey for the employer. Katrina Piechotta for the employee. Sept. 5, 2017. services would not be required that Saturday because the loader would not be in operation. How- ever, Grono stopped by the work- place that day and noticed that a loader was in service. He spoke with Zak McCready, supervisor, about the missed op- portunity. He was told that he could work further overtime hours to make up for the over- sight, but they would be offered in chunks of two hours spread out over four days. Grono refused the work and said his preference was to work the full day Saturday and not to work extra hours after his regular workday. On July 12, Grono and the In- ternational Union of Operating Engineers, Local 721, grieved the employer for a "failure to follow overtime list, people working out of classification," and he sought "full redress" and eight hours' pay at time-and-a-half. Eisnor wanted to work on Feb. 4, but his name was inexplicably overlooked by the supervisor as someone else did a maintenance labourer shift that day. He was told he could make up the time by working 10 hours over two days. Eisnor also refused the offer and he grieved it on Feb. 8. National Gypsum admitted that it breached the collective agreement in both cases, specifi- cally article 10(f )2 which said: "All overtime work at the quarry (Mil- ford) will be assigned by the vol- unteer overtime list as per senior- ity, shift, classification and then by seniority, shift and skill." The employer argued that al- though it did make a mistake by offering extra hours to the work- ers, this should have been accept- ed as other employees in similar cases had done so and worked the extra overtime hours at a different time to make up for the oversight. The union argued that by doing this, other employees might miss out on overtime hours while the missed workers made up the time and this wasn't fair to the other workers. Arbitrator Augustus Richard- son upheld the grievances and or- dered National Gypsum to pay the workers for the missed time. "The parties agreed that Grono lost the opportunity to work eight hours of overtime at time and-half at the loader operator's rate; and that Eisnor lost the opportunity to work 10 hours at time-and-a- half at the RC shunter's rate. The employer shall pay compensa- tion calculated on that basis to the grievors," said Richardson. The previous cases where the employees accepted makeup overtime was dismissed by the ar- bitrator. "Nor was I persuaded that the three other occasions when em- ployees had accepted in-kind re- placement overtime established anything other than that they happened. In one case (that of Pineo), the employee accepted the extra work contrary to his union's express injunction. The other (Derrick Isenor) was settled on a without-prejudice-without-prec- edent basis. And the third (that of MacLelland) was at a site to which article 10(f )2 was not applicable," said Richardson. "Neither grievor had volun- teered for overtime during the week. Nor had they volunteered to work overtime for one or two hours spread over several week days to be worked in addition to their regular shifts. In short, what the employer offered them did not replace what they had lost. It would have required them to work days they had not agreed to work; and to work extended rather than regular shifts on those days," said Richardson. Reference: National Gypsum (Canada) and International Union of Operating Engineers, Local 721. Augustus Richardson — arbitrator. James Green for the employer. Edward Crockett for the employee. Nov. 13, 2017. Past redress for missing overtime not relevant: Arbitrator < Stealing tea pg. 1 < Missed opportunity pg. 1

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