Canadian Labour Reporter - sample

7 Canadian HR Reporter, a Thomson Reuters business 2018 CANADIAN LABOUR REPORTER ARBITRATION AWARDS did accommodate him as he only drove curtain trailers. The roll-up style trailers re- quired the use of a hand crank, which caused Hoet pain when he drove them. On Nov. 28, 2015, Prairie Pride advised its drivers that a new cli- mate-controlled truck would be added to the driver rotation and each driver must drive it for one week or be terminated. Hoet told Sandy Zerebeski, lo- gistics manager, that he wanted an exception due to his tendonitis. He was told to get a doctor's note, which he did on Dec. 4. The note said Hoet should "avoid lifting and repetitive work," and Hoet testified he gave it to Zerebeski or Gaetan Duret, plant manager, but neither one recalled receiving the note. On Dec. 15, Duret provided Hoet with a form letter that was filled out by the doctor. It was re- turned with the limitation saying he "cannot use ratchets." Duret said this was troubling because all of the trailers have ratchets of some sort and the limi- tation meant Hoet could not op- erate any trailers. On Dec. 23, Hoet returned to his family doctor and had him conduct a more thorough assess- ment, which said: "Patient can use only modified trailers. No repeti- tive movements of wrists and el- bows." Duret then contacted Bourassa & Associates to conduct a full functional assessment of Hoet. On Dec. 28, Hoet was sched- uled to drive the climate-con- trolled truck. He was told to report to the plant for modified duties, instead of driving. And because he was on the modified work plan, he was not offered any overtime, as was com- pany policy. Bourassa completed its "full biomechanical examination" on Jan. 28. "At this point, we feel it reason- able that he remain using only the curtain-style trailer due to the his- tory of his condition, his biome- chanical status and the functional testing that was completed. He can immediately resume his du- ties as a driver on the curtain-style trailer," said the report. The union, United Food and Commercial Workers (UFCW) Local 1400, grieved the decision on Dec. 30, and argued Hoet lost out on overtime opportunities during the modified work sched- uling between Dec. 28 and Jan. 31. Arbitrator William Hood (with board members Cory Cozart and Rick Corvino) dismissed the grievance. "It was reasonable for the em- ployer to remove (Hoet) from his regular duties and place him on modified duties in the plant for the short period pending the functional assessment. The em- ployer acted reasonably in the accommodation process," said Hood. Some of the blame for what happened should be placed on Hoet, according to the arbitrator. "The alleged loss of overtime to (Hoet) may have been avoided if he had provided sufficient medi- cal information in the first in- stance." "There is no evidence that the employer was acting in bad faith or made an arbitrary decision when it decided to place (Hoet) on modified duties in the plant pend- ing the functional assessment. The decision was made pursuant to the obligation to accommodate, not discriminate, and prevent bodily harm," said Hood. Reference: Prairie Pride Natural Foods and United Food and Commercial Workers, Local 1400. William Hood — arbi- trator. Leah Schatz for the employer. Sachio Longo for the employee. Feb. 28, 2018. 2018 CarswellSask 97 Bashir complained to manage- ment and was told on Oct. 10 that the company would monitor the new practice before fully deciding which drivers could take home cars after shifts. After the union filed a com- plaint to the labour board, a ruling was issued: "I order the employer to reinstate the policy with re- spect to the employees' ability to take home vehicles which was in place prior to the employer's mes- sage which it delivered on Oct. 5, 2017. The employer must do this with respect to all employees, in- cluding Azhar Bashir." In December, Bashir attended a meeting with Javninder Singh, company owner, Tarek Rostom, general manager, and Randy Vil- grain, COO, to clarify the ques- tion of employees taking cars home. Vilgrain testified that Bashir said he had short-term memory loss, so that is why he sometimes didn't remember the exact rules, but Bashir said he was given per- mission in the past to take home cars after working, unless it was before his days off. On Jan. 24, 2018, Bashir again drove home in a company car af- ter his shift. Another meeting was held on Jan. 25. Singh testified he became con- cerned about Bashir's health due to his reported memory loss and Singh said he needed to be med- ically cleared before he could re- sume driving. But Bashir testified he didn't have any memory issues. Singh then asked for Bashir's chauffeur's permit. They walked outside to his car, which had the permit, and after Bashir said he wouldn't give up the permit, Singh grabbed a bag with personal be- longings and said he would give it back to Bashir when he surren- dered the permit. Bashir called the RCMP who told him what the employer did was not legal and he should de- mand to get his permit back. The permit was returned, but without employer sponsorship, it was worthless and Bashir was ef- fectively terminated. The union grieved the decision and also argued Aerocar violated the labour code multiple times. It also claimed the company fired him due to his union sup- port. Arbitrator Koml Kandola up- held the grievance and ordered the company "to immediately reinstate Bashir to his previous position and be made whole, with interest. In this respect, I order the employer to take whatever steps are reasonably necessary to ensure Bashir's chauffeur permit is properly sponsored and can be utilized to perform driving work for the employer." Aerocar was found to have violated the labour code on three counts. "Previous board decisions have found the employer engaged in a strategy to discredit the union and paint it as an interloper. In the circumstances of this case, I find the employer has continued that strategy. In addition, the employ- er has done so undeterred by the various board orders against it," said Kandola. "I find the employer effectively discharged Bashir from his em- ployment or, at the least, refused to continue to employ him as a driver. Bashir was permitted to take the vehicle home for all of December 2017 and the first three weeks of January 2018 without protest from the employer. The only material change was the union exercised its rights under the code to take a strike vote and to file a section 55 application. Im- mediately thereafter, Bashir was called in to the Jan. 25 meeting, the practical result of which was that Bashir could no longer drive for the employer," said Kandola. And Aerocar's insistence that it only wanted to ensure Bashir was healthy enough before it returned the permit was "not credible," ac- cording to Kandola. Reference: Aerocar Service Ltd. and Teamsters Local Union No. 31. Koml Kandola — arbitrator. Kevin Nanne for the employer. David Reynolds for the employee. March 2, 2018. 2018 CarswellBC 537 Employer conducted 'biomechanical examination' of worker < Limousine driver pg. 1 < Chicken-truck driver pg. 1

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