Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2018 February 26, 2018 ARBITRATION AWARDS events facility since 2015, first as a causal labourer and then she han- dled cleaning and set-up duties. Workers were told to phone a number that was staffed 24 hours per day by engineering employ- ees, whenever they were sick. Campbell was absent on mul- tiple days in 2016 (she booked off 54 days) which added up to more than 20 per cent of her scheduled time, testified the employer. But on Feb. 9, 2017, Campbell sent a text to "let (Brad) Pilling (in- terim assistant general manager) know what was going on," when she felt ill. She sent two more text mes- sages on Feb. 10 and 11, but on Feb. 12, Pilling advised Campbell to contact the engineering depart- ment whenever she was sick. Campbell continued to book off via text and each time Pilling acknowledged the message, often answering: "Okay." Pilling testified that at some point, Campbell "stopped calling in" which caused concern at the centre because workers on duty during weekends didn't see on a centrally located white board that an employee was away. Campbell stopped sending text messages to Pilling after March 1, until March 6. Pilling asked her why she didn't send any messages, and Campbell said she had called into the engineers on those days. However, no engineers recalled getting any messages from Camp- bell, said Pilling Campbell then texted Pilling each morning that she wouldn't be in to work until March 28, when she texted: "Hey Brad I just back from the docs. Thursday I will be in for work, no restrictions." She arrived at Keystone at 7:45 a.m. and gave Pilling six doctor's notes that explained her no-shows from Feb. 27 to March 29. Pilling and Don Hall, facili- ties manager, discussed what to do about Campbell's continued absences and they decided to dis- miss her via a letter prepared by Pilling, who testified the doctor's notes were not adequate and this influenced the decision to fire Campbell. The union, Canadian Union of Public Employees, Local 69, grieved the termination on April 13. The employer argued that un- der the collective agreement, "Seniority and employment shall terminate when the employee is absent in excess of three work- ing days without notifying the employer unless impossible to do so," which happened during the March period when no contact came from Campbell. Arbitrator Robin Kersey up- held the grievance and ordered the employer to reinstate Camp- bell, and to pay her "to 65 per cent of the amount she would have earned had she been scheduled to work on a full-time basis for the period from March 30, 2017, to the date of reinstatement," to reflect her attendance rate during 2017. "However, it is my view that, in considering compensation, I cannot ignore (Campbell's) at- tendance record, as it seems un- realistic to expect that, given that record, she would have worked 100 per cent of the scheduled days since March 30, 2017," said Kersey. The doctor's notes were refer- enced in the termination letter as being inadequate to explain Campbell's absence, but this can- not be considered in the decision, said the arbitrator. "The employer did not argue at the hearing of this matter that it was relying on some inadequacy in the doctors' notes as justify- ing the termination of Campbell's employment. Indeed, in light of the failure to challenge the notes at the time they were provided, such an option was not available to counsel for the employer." Reference: Canadian Union of Public Employees, Local 69 and Keystone Agricultural and Recreational Centre. Robin Kersey — arbitrator. David Swayze and Stacy Senkbeil for the employer. Kathy McIlroy for the employee. Sept. 4, 2017. via suspensions. One was for speeding in the refinery parking lot, while another was for leav- ing his post on Dec. 22, 2016, to start his vehicle, and removing his personal protective equip- ment (PPE), which was a viola- tion of the site's safety rules. Imperial Oil also cited Zaplo- tinsky's "less than forthcoming" attitude during the investiga- tion of that incident. Zaplotinsky was also accused of making racial comments and he "inappropriately imitated Middle Eastern accents," during a March 23, 2017, conversation with co-workers. Pritpal Gill testified that he was not offended by the com- ments, which were directed at him. He said the Strathcona workers often joked with each other that way, and outsiders may have considered such com- ments as wrong, but he didn't. Both incidents of Zaplotinsky leaving his post were grieved by the union, Unifor, Local 21-A. For the Dec. 22 incident, the union argued that Zaplotinsky had completed his shift hando- ver, but he was wrong to remove his PPE while still inside the safety zone. He deserved pun- ishment, said the union, but not an unpaid suspension of four 12-hour shifts. However, the employer insisted that during the sub- sequent investigation into the event, Zaplotinsky's answers were not forthcoming. But, said the union, Zaplo- tinsky had completed his shift handover properly and he thought he was being ques- tioned on that basis, which explained his answers. Zaplo- tinsky said he removed his PPE to start his car, so he wouldn't transfer chemical smells into his new truck. For the second and culminat- ing incident, the union argued Zaplotinsky was OK to leave his post without securing a relief operator because he had not been asked by Bryan Carter, process field supervisor, to work extra overtime to cover the important post of alky 1. "The evidence with respect to the April 22 night shift was that it was discovered early on that the post needed to be filled. The callouts that the supervisor had made had failed to find any- body," said the union. Arbitrator Francis Price upheld the grievance and or- dered the employer to reinstate Zaplotinsky. "In this case, I am satisfied that the termination was un- warranted. (Zaplotinsky's) con- duct on April 23, 2017, did not provide any just or reasonable cause for any discipline." For the December 2016 in- cident, "The issue of safety ref- erenced in the first grievance, namely the failure to wear PPE and carry a radio, did warrant discipline, but on the facts of this case, warrant only the mi- nor suspension," said Price, who ordered the employer to substi- tute four unpaid shifts with two unpaid shifts as a suspension, and to pay Zaplotinsky for the Jan. 9 and 10 shifts. The second and culminating discipline was caused by the employer, said the arbitrator, and Zaplotinsky should not have been blamed in any way. "In this case, the evidence shows that with nine hours left in the shift, the controller, Carter, knew he would be short one alky position for the follow- ing shift," said Price. "Common sense suggests that he would have asked (Zaplotinsky) (as the alky 1 on the current shift) to stay on to cover some of the next shift," said Price. "Carter had plenty of time and opportunity to ask or direct (Zaplotinsky) to stay over. Yet there was no request or direc- tion to (Zaplotinsky) to stay on. (Zaplotinsky) thought that he wasn't needed for the following shift, since no one had asked him to stay." Reference: Imperial Oil and Unifor, Local 21-A. Francis Price — arbitrator. David Corry, Amy-Lynn Kosick for the em- ployer. John R. Carpenter, Wassila Semaine for the employee. Jan. 31, 2018. 2018 CarswellAlta 188 Employer considered submitted doctors' notes inadequate < Leaving post pg. 1 < Sick days pg. 1

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