Canadian Labour Reporter

7 Canadian HR Reporter, a Thomson Reuters business 2018 CANADIAN LABOUR REPORTER ARBITRATION AWARDS asked if SRHA would hire Barb Wieler as a psychometrist. He was told that if no internal candidates applied for the open position, she would be considered. But on Jan. 6, 2015, Buglas found out that Helmer and Wiel- er were in a relationship. After checking the policy, Buglas re- sponded by email on Jan. 13 that the employer "will not allow an ex- emption to the policy at this time." Helmer kept pressing for SRHA to hire Wieler but he was rebuffed. On Feb. 19, Mansfield Mela, a professor in the psychiatry de- partment at the University of Saskatchewan, emailed Helmer requesting help with a study he was undertaking about fetal alco- hol syndrome. He wanted Helmer to help with psychological assess- ments. Helmer forwarded Wiel- er's name and Mela accepted her due to his trust of Helmer. Eventually an office was pro- cured near Helmer's for Wieler and graduate student Jessica Za- grodny. Wieler was offered $5,000 for her participation in the study. Helmer testified that he advised Buglas on six occasions between January and May that Wieler was one of the persons he hired for the study. Buglas testified that this never happened and she was unware Wieler had been hired. Helmer also said that he sent an email to Buglas but a search of the emails showed nothing. On June 24, Buglas met Za- grodny in the lunch room and asked how the study was going. Zagrodny said she was waiting on Wieler to finish her work. Buglas then confronted Helmer in his office and a heated dis- cussion happened. Eventually, Helmer said, "Discipline me if you want, but get out of my office," and he slammed the door. Tracy Muggli, director, was ad- vised about the situation and she suspended Helmer with pay. On Jan. 7, 2016, a disciplinary letter was presented to Helmer. He was given a 30-day unpaid sus- pension for "violation of privacy involving several (SRHA) clients," and insubordination. By allow- ing Wieler access to patient re- cords without signing the privacy policy, Helmer violated the policy, said the employer. But Helmer testified he didn't sign the policy and no paperwork was produced in the arbitration hearing that proved he had. The Health Sciences Asso- ciation of Saskatchewan (HSAS), grieved the suspension on Jan. 18. Arbitrator John Comrie dis- missed the grievance and upheld the suspension. He found Helmer was "innocent of the privacy in- fractions alleged by SRHA, he was insubordinate in failing to obey the clear instructions not to directly work with or supervise Wieler on the SRHA premises." Helmer's attitude and evasive- ness were not helpful in his rela- tionship with management, ac- cording to the arbitrator. "If Helmer had been more open and forthcoming about the fact Wieler was his common-law spouse and did not give the ap- pearance he was trying to hide this fact, and if he had initially brought to Buglas the opportunity of Wieler working for Mela on the study in the very beginning, it is even possible SRHA management would have approved this short term, as an exception to the policy, although that can never be known with certainty," said Comrie. "Unfortunately, because of the distrust that had developed be- tween management and Helmer, he did not see that as a viable op- tion. He therefore decided to try to avoid the issue by not raising it with management when he knew better." Reference: Saskatoon Regional Health Authority and Health Sciences Association of Saskatchewan. John Comrie — arbitrator. Gary Bainbridge for the employer. Kevin Zimmerman for the employee. Nov. 20, 2017. The company had recently suf- fered the death of an employee in its Truro, N.S., operation and em- ployees had been understandably upset about that incident, testified Michel Munroe, electrical tech- nologist and Carrier's supervisor. The loader operator filled out a form for a "near miss" event that was to be completed after an in- cident that could have injured or killed someone. Munroe investigated and he determined Carrier failed to com- plete the company's "lockout" procedure which would have dis- abled the feeder. The next day, a meeting was held and Carrier was given a chance to respond. He said he tried to notify the driver by phone, but he was unsuccessful. Car- rier also admitted to wrongdoing regarding the "lockout" and he wasn't wearing the appropriate safety vest. At the time, Carrier was oper- ating under a 2016 last-chance agreement (LCA) that said: "Should you have another seri- ous disciplinary issue on your file, your employment with the company will be terminated with cause." Carrier had received three pre- vious five-day suspensions for his actions, as well as a verbal warn- ing, which necessitated the LCA. No firm decision was made during the investigation meeting, but Carrier was told to go home until further notice. He returned on July 28, two weeks later. When he returned, site man- ager "CC" presented him with a termination letter, and Carrierleft the site without incident. The union, Unifor, Local 104, grieved the dismissal on July 28 and argued that the employer participated in a double-penalty for the "lockout" incident when it imposed a suspension and then termination given by two different managers. Because it was Carrier's first safety violation, the employer should have followed the letter of its safety disciplinary policy (SDP) and imposed the suspension, ar- gued Unifor. Arbitrator Guy Couturier dis- missed the grievance, but agreed with the union on one point. "I do agree that once a member of management, with the requisite authority, such as Michel Munroe, has assigned and imposed a pen- alty for a disciplinary offence, the incident is closed and cannot be revisited, either by the same per- son or anyone else in management who feels that a more severe pen- alty is called for," said Couturier. However, the agreement was the determining factor, he said. "The LCA itself is challenged by Nicholas Carrier, stating that he signed off reluctantly. Explaining in his testimony that if he didn't sign, he could not go back onto the work site. He is likely cor- rect in that conclusion. Nicholas Carrier is currently unemployed and has a family at home to sup- port. Although far from being benign as mitigating factors, they unfortunately do not negate the conditions of the LCA and the actions which triggered the dis- missal. Therefore, for the reasons expressed, the grievance is dis- missed." And even though the SDP was clear, the LCA overruled its im- plementation. "The SDP is a policy of general application within the company. It applies to all workers. However, the LCA applies solely to Nicho- las Carrier. It is this employee that, over time, has found himself in a bargain with his employer in which the latter foregoes dis- charge, and puts its faith in the employee that nothing, of a simi- lar nature, would repeat itself. I am satisfied that in this instance, the SDP is subordinate to the LCA in relevance, because of the unique perspective it causes when called upon to consider the ap- plication of the SDP to (Carrier)," said Couturier. Reference: J.D. Irving Ltd., Grand Lake Timber and Unifor, Local 104. Guy Couturier — arbitrator. Clarence Bennett for the employer. Brenda Comeau for the employee. Nov. 21, 2017. CarswellNB 539 'Innocent' of privacy violation, but 'insubordinate': Arbitrator < Last-chance agreement pg. 1 < Hiring spouse pg. 1

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