Canadian Labour Reporter

Canadian HR Reporter, a Thomson Reuters business 2018 March 12, 2018 ARBITRATION AWARDS 12 gaining unit, but the request was denied by the employer. The union used the B.C. Labour Relations Code section 7 as the basis for its argument, which says: "If employees reside on their em- ployer's property or on property to which the employer or another person has the right to control access or entry, the employer or other person must, on the board's direction, permit a representative authorized in writing by a trade union to enter the property to at- tempt to persuade the employees to join a trade union and, if the trade union acquires bargaining rights, after that to enter the prop- erty to conduct business of the trade union." A 24-kilometre access road was strictly controlled by the company, and cellular signals did not reach the job site, necessitat- ing the union's need to have more contact with workers. Only persons who were au- thorized by the company were al- lowed to use the road, which the union argued meant the company was unfairly restricting the union. Workers were housed at the mine site during 14-day shifts, and travelled home during the subse- quent 14 days off. The mine employees lived in dorms with "paper-thin" walls, which was another reason the union wanted to visit workers — but not in their rooms as this would most likely disturb other sleeping workers. In the past, union officials stayed at Whitehorse in a hotel, and then made the 345-kilometre trek to the mine to visit workers. But the union asked to be pro- vided with lodging for three spe- cific days in February 2018 so it could engage with the resident employees, which was much eas- ier than contacing them at their homes. The company said the union should not be given constant and unfettered access to workers as this would unfairly disrupt its daily operations. It said there were two shop stewards who worked regular shifts, and they were able to provide workers access to the union. If the union was given its way, argued the employer, it would be granted unequal access to all of the workers during their down time, which didn't happen on non-live-in sites. Arbitrator Jennifer Glougie dis- agreed and ordered the employer to allow three union representa- tives to the site on three different periods, for three days each time. "The nearest community with hotel availability, Watson Lake, is approximately 140 kilometres away. It would be inappropriate to require the union to commute that distance given the hours for which the union is granted access to the dining facility," she said. Despite the employer's argu- ment, "I am not persuaded on the evidence that the presence of three union representatives will be unduly disruptive such that ac- cess should be limited to only one organizer as the employer sug- gests," said Glougie. Because of the thin walls, the arbitrator ordered the company to provide the television room for union interactions with employ- ees. "I am satisfied that allowing union representatives to meet with employees in private rooms in the dorms would be disruptive to the employer's noise policy. For that reason, I am not prepared to allow union organizers to meet in private rooms in the dorms." Reference: Coeur Silvertip Holdings and Teamsters, Local 213. Jennifer Glougie — arbitrator. Robert Sider for the em- ployer. E. Casey McCabe for the employee. Jan. 26, 2018. 2018 CarswellBC 274 health specialist, noticed the most recent medical absence report (MAR) from JV was identical in many ways to another one she submitted earlier that year on Jan. 31. Klein said the checkmarks matched, the reason for sickness was written in the same handwrit- ing, but only the dates were differ- ent. Klein faxed the notes to the doctor in question and asked him to confirm that he had seen JV on July 4. "I am surprised to see two areas which are definitely not written by me. One date of first examination of current absence and date form completed, rest of the hand writ- ing is mine. It seems to duplica- tion (sic) of previous note of 31st January," said the response. The doctor said he had seen JV on July 1, not on July 4. On July 15, management ques- tioned JV about the apparent anomalies with the doctor's note. After she denied submitting a false document, the employer decided to terminate her employ- ment. "Your responses were dishon- est and failed to provide an ac- ceptable explanation for your falsified claim. Your actions are considered fraudulent, an abuse of sick leave and you are deemed absent without authorization," said the letter of termination, which was dated July 23. The union grieved the decision, and argued that her depression and anxiety explained her actions. The union argued that JV's troubles worsened after she had an abortion in June 2013, which she undertook because of a failed relationship with her boyfriend (the child's father), who was un- faithful to her. Around the same time, she un- expectedly lost her cousin, who died in May. As well, she had been dealing with the fact her mother's heart was operating at a reduced capacity and the sickness was hard for JV to process. On the day JV claimed to have gone to the doctor, she called into SaskTel in the morning and left a voicemail message. Later that day, an MAR was sent via courier to her home so she could get a doctor to sign it. JV said that she was feeling de- pressed that day but she didn't want to go to the doctor because she felt that she might have been committed to the psychiatric ward. She cut out the doctor's infor- mation from the January note and pasted it onto the blank form be- fore faxing it back to SaskTel. Arbitrator Daniel Shapiro dis- missed the claim and said the em- ployer was justified in terminating JV. "(JV's) apology to SaskTel at her hearing, while seemingly heart- felt, might just as likely be a tactic to extricate herself from the diffi- cult circumstances she finds her- self in. She had numerous oppor- tunities to apologize before her termination, or even afterwards. The apology she did give, well over three years post-termina- tion, falls squarely in the category of 'too little too late,'" said Shapiro. By committing a fraudulent act, the employer-employee relation- ship was irretrievably broken, said the arbitrator. "Clearly, an organization such as SaskTel, whose business in- volves dealing with and earning the trust of the public, must insist on honesty by its employees. And if such misconduct, which is noto- riously difficult to catch, is toler- ated on the part of one employee, the potential repercussions within a company the size of SaskTel would be serious indeed." Reference: Saskatchewan Telecommunications and Unifor, Local S-1. Daniel Shapiro — arbitrator. Stephanie Yang for the employer. Crystal Norbeck, Sam Schonhoffer for the employee. Jan. 10, 2018. 2018 CarswellSask 3 24-kilometre road access strictly controlled by employer < Falsifying sick note pg. 1 < Northern B.C. mine pg. 1

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