Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2017 December 11, 2017 ARBITRATION AWARDS unit and supervised Patane that night. At around 2:20 a.m., she testified a patient had requested assistance four times since 1 a.m., and she directed Patane to attend and help the patient to use the washroom. Patane argued with Elomina about the request and he said he would help another patient first. Another nurse on duty eventually helped out the first patient. When he was questioned on May 12 about why he refused to follow his supervisor's direction, Patane said he didn't remember the incident. Another nurse, James Magara, testified about Patane's behaviour toward another patient who was having trouble using the wash- room. After several attempts, Pa- tane left and Magara heard Patane refer to here as a "nasty bitch." Magara later learned that the patient had heard Patane's com- ments and she didn't want him to help her anymore. Magara sent an email to his supervisor about the incident and also included his characterization of Patane's rough treatment of the same patient. Patane denied the charge of rough treatment but he testified that he made the comment about the patient when he thought he was far enough away from her. Patane said her behaviour to- ward him was not pleasant and she repeatedly called him a "big galoot," a "fat health-care aide" and a "fat bastard," which lead to his comment about her. A third incident took place when a difficult patient (who was covered in his own feces) wouldn't cooperate with staff members who were trying to get him to shower. Patane acted too aggressively, ac- cording to various coworkers. Urszula Konopka, registered nurse, testified Patane "was pushing him to the chair and was holding him down with quite un- necessary force to give him an IM injection." On June 9, Patane was fired. The termination letter also ref- erenced another incident of mis- treatment of one patient on two separate occasions and his com- ment to a nurse when asked to do something of, "OK, I will get somebody to fucking do that." The Canadian Union of Public Employees (CUPE), Local 2509, grieved the decision and argued the firing was excessive, and a lot of the testimony against Patane was hearsay and therefore it was unreliable. Arbitrator Martin Freedman dismissed the grievance. "The written warning (Patane) was giv- en in January 2014 included being told that he was to take direction from the nurse in charge. This was a warning to which he did not pay adequate attention. The warning states that any future misconduct or unacceptable behaviour would lead to further discipline up to ter- mination." That letter should have alerted Patane that he shouldn't have committed even more miscon- ducts, according to the arbitrator. "The discipline that had been imposed on (Patane) did not have the effect of preventing the behaviour that was manifest in the incidents which I have found occurred. The hospital saw no rehabilitative potential, and I un- derstand why. Considering all the circumstances discussed above, the hospital, in my opinion, was fully justified in terminating (Pa- tane's) employment." "When asked at the arbitration whether he would do anything differently now, he said: 'No.' He showed, argued the hospital, a 'palpable disdain and contempt' for several of his former RN (reg- istered nurse) co-workers," said Freedman. Reference: Winnipeg Regional Health Authority, Seven Oaks General Hospital and Canadian Union of Public Employ- ees, Local 2509. Martin Freedman — arbitrator. Timothy Lach for the employer. Trevor Ray, Katie Haig-Anderson for the employee. Oct. 31, 2017. contacted Diversified Transpor- tation management. After an investigation, Suther- land was dismissed on Nov. 18. The union, Teamsters, Local 362 grieved it and argued Houghton's evidence wasn't enough to war- rant a termination. During testimony, Houghton replied "possibly" when he was asked whether or not Sutherland (who was at the arbitration hear- ing) was the same bus driver who passed him by. The company said there were five drivers working on the day in question and Sutherland was the only one who had medium-length brown hair, which is what Hough- ton said when asked for a descrip- tion. The others were three blond women and one short-haired man on duty, said the employer. Sutherland's cellphone records showed she received an incom- ing call at 11:45 a.m. from Olivier Baril, operations manager. It went on for six minutes. Baril said he was returning a previous call from Sutherland, who wanted to inquire why a shut- tle service from Edmonton was being discontinued for the bus drivers. After that call, Baril received a call from a supervisor who said a bus driver was seen operating a cellphone while driving. Because there were between 2,800 and 3,000 workers on site at any given time, the company views the site as safety-sensitive, said Baril, and it consistently enforces the cell- phone ban. After a brief investigation, it was determined Sutherland's bus was the closet to the missed stop in question. She told Baril she didn't pass Houghton at any time during her shift. But after a further investigation of the staffing levels, it was deter- mined only two drivers were near the stop at that time while two other relief drivers were at the of- fice site. The final driver was not near the stop at that time. The second driver was a male, Paul Gibson, who showed up after Sutherland's bus missed Houghton. When Houghton got onto Gibson's bus, he told his story about the driv- er speaking on the phone. Houghton and Gibson were ac- quainted with each other, as Gib- son had previously driven him from Edmonton to the job-site as part of the company's shuttle ser- vice. Sutherland testified that around 11:45 a.m., she had been taking a cigarette break and that was when she spoke with Baril. Arbitrator James Casey denied the grievance and said the testi- mony provided by Houghton was key to his decision. "He provided his evidence in a fair and balanced way. He felt compelled to report the incident because it was an extremely seri- ous safety breach. I fully accept that in his testimony he attempted to accurately describe the events of Nov. 13, 2015." "Richard had a clear, unob- structed view of the driver. He was intensely focused on the driver since he was trying to make eye contact. He has 20/20 eyesight. He had a good opportunity to ac- curately observe the driver. He has no motivation except to give forthright testimony. He reported the matter to his supervisor soon after because he was very con- cerned about the serious safety violation," said Casey. Sutherland should have known that talking on the phone while driving could be a fireable offence, said the arbitrator. "(Sutherland) was given a copy of the policy and signed docu- mentation confirming that she read and understood the policy and would abide by its terms. In her testimony, (Sutherland) con- firmed that she understood the policy and that talking on the cell- phone while driving was unsafe. However, she also indicated that she didn't appreciate how serious the matter was since she focused on the words 'up to and including termination.' I do not accept this evidence," said Casey. Reference: Diversified Transportation and General Teamsters, Local Union No. 362. James Casey — arbitrator. Dwayne Chomyn, Ryan Smith for the employer. Roxana Jangi for the employee. July 24, 2017. Rough treatment, insubordination why employee lost job < Alberta pg. 1 < Winnipeg pg. 1

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