Canadian Labour Reporter

April 23, 2018

Canadian Labour Reporter is the trusted source of information for labour relations professionals. Published weekly, it features news, details on collective agreements and arbitration summaries to help you stay on top of the changing landscape.

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8 Canadian HR Reporter, a Thomson Reuters business 2018 April 23, 2018 ARBITRATION AWARDS caused damage to a United Air- lines airplane. After the incident, the agents were advised by Manni Baines, duty manager, that they would be tested for the presence of drugs or alcohol as per ATS policy. After the ramp agents held an investigation meeting with Baines and other management person- nel, it was determined Sehgal and his coworker did not follow the standard operating procedure during the incident and both were given two-day suspensions. Sehgal also provided a urine sample. On July 13, ATS was told that Sehgal's urine tested positive for marijuana metabolites. Sehgal testified that he was on a daily regimen of five grams of medical marijuana per day for pain management of a back prob- lem caused by excessive twisting and turning during his daily work routine. Sehgal also suffered from a sports-related knee injury and he had been prescribed marijuana about three years previously but he admitted he didn't know the strength of his current strain be- cause he had been through three different suppliers of the drug. When the employer discov- ered Sehgal was using medical marijuana, it asked him to: enter a substance-abuse program, agree to access the employee assistance program and refrain from using marijuana or he would be termi- nated. Sehgal refused to sign off on these conditions. On July 28, Sehgal was termi- nated. "This will serve as formal notice that your employment will terminate with cause effective July 28, 2016, due to your refusal to agree to the conditions out- lined in your final-warning letter, which was issued to you on July 20, following your positive test results from July 7," according to the letter. The union, Unifor, Local 2002, grieved the decision and argued the conditions to test for drugs after an incident were too broad and by not accommodating Se- hgal, ATS violated his human rights. The employer argued that be- cause Sehgal was employed in a safety-sensitive position, the de- cision to terminate — despite no previous discipline on his record — was justified. Arbitrator Daniel Randazzo upheld the grievance and ordered ATS to reinstate Sehgal immedi- ately. "ATS failed in its duty to at- tempt to accommodate (Sehgal), terminated (Sehgal) without just cause and in doing so, violated both the CHRA (Canadian Hu- man Rights Act) as well as its obligations under the collective agreement." The employer did not fol- low the proper steps once it was found Sehgal was taking medical marijuana for pain management, said Randazzo. "Once informed that the positive test was the re- sult of legally authorized medica- tion, in this case medicinal mari- juana, it was incumbent upon ATS to attempt to accommodate (Sehgal)." And despite what the company argued, Sehgal did not break any laws. "With regards to (Sehgal's) circumstances, as earlier found, (Sehgal) was not using illegal drugs at or in connection with his workplace and did not report to work or work while impaired by drugs or alcohol. (Sehgal) was using medically authorized mari- juana," said Randazzo. ATS's argument that Sehgal was impaired does not hold wa- ter, according to the arbitrator. "The expert evidence and lit- erature are inconclusive when it comes to determining the window of impairment, which varies depending on the strain, dosage and the user and, as such, extreme caution should be taken when an employee is taking me- dicinal marijuana in a safety-sen- sitive workplace." Reference: Airport Terminal Services and Unifor, Local 2002. Daniel Randazzo — arbitrator. Hal Rolph for the employer. Dijana Simonovic for the employee. March 5, 2018. 2018 CarswellNat 991 continuously threatened by sin- gle-role EMS providers and mis- informed leaders. The speakers in this workshop will present how they use facts to thwart rhetoric and protect the service they pro- vide." The comments were sent out via social media. Changes to the wording should have been made, but they weren't. Once the document's intro- ductory language was made pub- lic, single-role EMS providers (paramedics) quickly complained about the comments. Winnipeg paramedics made up the bulk of the union membership (Mani- toba Government and General Employees' Union (MGEU), Para- medics of Winnipeg, Local 911). The union filed a grievance on Sept. 4 (signed by 156 employees) and it included a respectful-work- place complaint. The program language was "insulting and disrespectful to our members. It has jeopardized employee morale, dignity and well-being and has the potential to undermine work relationships and productivity," wrote the union in the complaint. In July 2016, it was ruled after an independent investigation that Lane violated the agreement. He was ordered to write an apology to all union members — which he did in November — and he offered an "unreserved and sincere apol- ogy." However, the union said the apology was late and not sincere enough. It argued Lane should be forced to prepare another apology — with language written by the union — and he should undergo respectful-workplace training. Lane argued the apology was late because it had to be approved by various members of the ser- vice's executive, which took time. As well, the investigation had to be completed, which also contrib- uted to the lateness of the apology. Troy Reidy, vice-president of the MGEU, testified he was "distressed and shocked" upon reading the program's language through social media and most members of the paramedics union felt "second-class" due to their single-role designation, unlike firefighters, most of whom were dual-role trained as paramedics. Arbitrator Arne Peltz upheld the grievance and ordered the city to pay $300 to each member of the bargaining unit as of Sept. 1, 2015, and to pay the union $10,000 in damages. "While there was injury to dig- nity, I would distinguish it from cases where the collective agree- ment breach caused particular harm to individuals due to their personal circumstances," said Peltz. "In the present case, there is no evidence of unique harm to any individual or select group of employees within the bargaining unit. The text was offensive and insulting to all members equally. In essence, it was an affront to the dignity of the entire group." However, he said, "the chief is not ordered to apologize again in the terms drafted by the union, nor is the city ordered to prepare a corrective action plan." What Lane did was wrong and worthy of reprimand, but it "was not a conscious effort to demean or belittle" union members, said Peltz "Union members were of- fended and insulted by a written program banner under which the chief gave a presentation at an out-of-country conference. It was not the words he spoke that offended but the header under which he appeared. The text con- veyed a disrespectful message to paramedics." And the arbitrator found fault with the chief 's initial apology to the union membership. "There was undue delay in de- livering an apology for the disre- spectful message. When it finally came, the apology was insufficient and insincere," said Peltz. Reference: City of Winnipeg and Manitoba Government and General Employees' Union. Arne Peltz — arbitrator. John Jacobs for the employer. Keith LaBossiere for the employee. Feb. 28, 2018. 2018 CarswellMan 65 ATS 'failed to attempt to accommodate': Arbitrator < 'Injury to dignity' pg. 1 < Toronto airport pg. 1

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