Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2018 February 12, 2018 ARBITRATION AWARDS In November, Wang advised the hospital that due to medical reasons, he was unable to work any night shifts. Under the new 21-week schedule, Wang would have been required to work eight night shifts. Following a cursory search to accommodate his schedule at FMC, Wang was transferred on Feb. 24, 2016, to the Rockyview General Hospital, also in Calgary. He accepted the transfer and started working there on March 10. The union, Health Sciences Association of Alberta (HSAA), grieved the decision and argued the employer didn't do enough to accommodate Wang at FMC. The grievance was amended on April 4 to add the fact that: "As well, as a result of the move to (Rockyview), I lost my permanent onsite park- ing." Wang said he was placed at the bottom of a six-year parking wait- ing list at Rockyview and he could not afford to pay the estimated $10 to $15 per day parking fees. The hospital argued it properly accommodated Wang by trans- ferring him to an operation that doesn't have 24-7 hours. LaDawne Goodsman, manager, testified she was responsible for scheduling 28 technicians on day shifts, five on evening shifts and two for the night shift, when the change was made, and it took her several months to do so. Finally, Goodsman arrived at a schedule that would achieve the goal of full-time operation and it was approved by a majority of employees, who voted on the new schedule. On Nov. 23, Goodsman sent an email to all pharmacy techni- cians to "to see if there is anyone that has a burning desire to work nights," to accommodate Wang's scheduling requirements. She received positive indications from two staff members: Maneka Sidhu and Kira Collins. However, Collins later rescinded her wish to work nights, leaving only one worker to fill the night shifts. Goodsman testified she was ul- timately unable to come up with a schedule that would prevent Wang from working any night shifts. After a discussion with the hu- man resources department, it was decided to offer Wang a transfer, which he accepted. Arbitrator John Moreau upheld the grievance and ordered both sides to work out an acceptable ac- commodation. "I accept Goodsman's testimo- ny that the scheduling obligations under the collective agreement, coupled with the reality of ongo- ing shift trades and limited staff interest in working nights, was an impediment to accommodating (Wang) at the FMC," said Moreau. "In my view, Goodsman did not go far enough in determining whether (Wang) could be accom- modated." The lone message to staff sent by Goodsman did not constitute a "thorough review," according to Moreau. "Her email to the full-time staff of Nov. 23, 2015, did not have the tone one would expect under the circumstances. An inquiry (as to) whether anyone had 'a burning desire to work nights' suggests that the accommodation request was not being taken seriously by her to begin with, given the un- spoken presumption that nobody generally likes to work nights," said Moreau. It would have been better if Goodsman had further probed Sidhu to see if something could have been worked out with re- spect to the new schedule, he said. "To simply stop at the point she did, without taking any further steps to see if there was some- thing more that could be done for (Wang) , short of a transfer to an- other site like the Rockyview, does not in my view satisfy the accom- modation to point of undue hard- ship test," said Moreau. Reference: Health Sciences Association of Alberta and Alberta Health Services. John Moreau — arbitrator. Erin Ludwig for the employer. Karen Scott for the employee. Jan. 17, 2018. 2018 CarswellAlta 72 one-day suspension. He was also told that any further, similar ac- tion could result in his dismissal. On May 4, Bezanson was given a written warning after another one-day suspension in April, due to his spotty attendance record and for leaving a shift too early. On July 8, Scott Carter was the lead hand on a shift that included Bezanson. Carter noticed Bezan- son and Richard Confiant had completed their cleaning tasks but were wandering around the plant and they didn't offer help to other employees, which was ex- pected of employees who finished early. Carter spoke to the pair repeat- edly about their behaviour. Later, Bezanson testified he was sitting on a bucket talking to Confiant when Carter "came over scream- ing and hollering at us." Confiant explained he sat for a moment be- cause he knees were sore. Carter later told Keeping about the incident, and Keeping then launched an investigation. Keep- ing found Bezanson at his sta- tion and he informed him that he was performing an investigation about Bezanson's work habits. Bezanson then, "storm(ed) off saying, 'You do it your way and I am going to do it my way and I know where (Carter) lives," said Keeping. A few minutes later, Bezanson angrily approached Carter, who said Bezanson "chest bump(ed) me twice, trying to provoke me into a fight." Two witnesses corroborated this story with Keeping, who ar- rived shortly thereafter. Bezanson said he was only reacting angrily after Carter knocked off his helmet. He said he was talking to Carter to gain ac- cess to cleaning chemicals, which were controlled by the lead hand on shift. Eden Valley Poultry eventu- ally terminated Bezanson on July 15 for the assault on a supervisor, combined with the lack of an apol- ogy. The union, Unifor, Local 2216, grieved and argued the discipline was not consistent with similar incidents and the employer had used employee assistance pro- grams in the past and should have done so with Bezanson. Arbitrator Augustus Richard- son dismissed the grievance and said Bezanson committed an of- fence worthy of being punished by firing. "It involves non-con- sensual physical contact that was intended, and hence constituted an assault (albeit one involving only chest bumps rather than vio- lent physical contact coupled with physical injury)." Bezanson's lack of remorse and his previous punitive events con- tributed to the culminating fac- tors that lead to his termination, said Richardson. "Moreover, the prior disciplin- ary offences — lack of attendance, leaving work early, sitting down rather than helping others com- plete their assignments, challeng- ing the instructions of his supervi- sors — were all of the same type. In each, (Bezanson) acted as if his own interests or opinions were the correct ones." And by attacking Carter, some- thing bad could have happened. "Chest bumping, in terms of phys- ical contact, may be a relatively minor assault. But meat process- ing plants are dangerous places. A slight physical push or bump in such an environment could lead to serious injury if, for example, the employee being bumped stum- bled into machinery or fell on a slick floor," said Richardson. Bezanson's comments about Carter also contributed to the em- ployer's decision, said Richardson. "There was the threat that was implied in the comment about knowing where Carter lived, or taking out his good eye. These comments may have been idle threats made in the heat of the moment," said Richardson. "But they were threats none the less. Moreover, they were made to or in respect of a supervisor, which makes them insubordi- nate." Reference: Eden Valley Poultry and Unifor, Local 2216. Augustus Richardson — arbitrator. Rebecca Saturley for the em- ployer. Gary Healey for the employee. Dec. 13, 2017. 2017 CarswellNS 919 Single email didn't constitute 'thorough review': Arbitrator < 'Chest bump' pg. 1 < Calgary pharmacist pg. 1

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