Canadian Labour Reporter

June 4, 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 June 4, 2018 ARBITRATION AWARDS continued to do so 75 other times up until May 17, 2015. After Munoz failed to respond to requests from the insurer, Sun Life, her internet access to the ac- count was suspended on April 28. By that time, Sun Life had verified with the massage therapist that no appointments had happened with Munoz during the times re- quested. On May 25, Sun Life sent an email to Munoz and requested receipts for three claims that totalled $357 that were filed in March of that year. On July 29, 2016, an investiga- tor with the fraud risk manage- ment department of Sun Life sent a letter to Munoz. It requested further proof of the March 2015 claims and it gave an Aug. 9 dead- line to provide the receipts or fur- ther action would be taken. Nothing further was received by Sun Life and on Aug. 11, Janelle Hawke, group accounts benefits executive at Sun Life, emailed Munoz to advise her the insurer was now investigating 76 claims totalling $6,783 (of which $6,188.25 was paid to Munoz), over a two-year period. On Aug. 30, Sun Life and Mu- noz worked out a repayment ar- rangement whereby she would pay the insurer $250 per month for 24 months. On Sept. 9, Munoz met with Denise Kitsul, senior human resources consultant with the employer, to explain why the false claims were filed. She said that her husband had been un- employed for two years and the couple were being sued by the Canada Revenue Agency (due to them owing about $14,000 in back taxes), which caused a strain on their finances. But on Oct. 24, 2016, Munoz was dismissed. She was accused of submitting false claims "even after Sun Life notified you sever- al times your claims were being audited. At no time did you come forward to admit your actions to defraud the employer and Sun Life prior to our investigatory meeting," said the letter of ter- mination. (The delay in the firing was be- cause Munoz was off work due to medical reasons.) Munoz testified that her actions left her feeling "terrible and horrible" but that money woes was the sole reason for her submitting false claims. The union, the Health Sciences Association of Alberta (HSAA), grieved the decision and argued because of her long tenure and the fact that she had made ar- rangements to pay off the debt, this was a mitigating factor. Arbitrator John Moreau (backed by fellow board mem- bers Kayla Simpson, Trina Avey) disagreed and upheld the termin- ation. "What is striking here, be- sides the considerable amount of money involved, is the ex- tended period of time over which (Munoz) filed false claims. She kept up this behaviour for almost two years starting in July 2013 with regular reimbursement re- quests from Sun Life," said Mo- reau. Despite her family's personal financial circumstances causing the actions, this was not enough of a mitigating factor, accord- ing to the arbitrator. "Those are relevant considerations but do not in themselves or collectively provide a basis for reinstatement given the gravity and ongoing na- ture of (Munoz's) offence." Munoz's testimony was also questioned by the arbitrator. "To say that she did not pay attention to the May 25, 2015, email when there is clear evi- dence that she opened it strains her credibility. The fact that she did not submit any further claims after May 19, 2015, one week be- fore she received the May 25, 2015, email from Sun Life also raises a high suspicion that she knew Sun Life was actively in- vestigating her false claims," said Moreau. Reference: Calgary Laboratory Services and Health Sciences Association of Alberta. John Moreau — arbitrator. Damon Bailey, Iain Bailey for the employer. Dennis Bennett for the employee. April 10, 2018. 2018 CarswellAlta 684 Employee's testimony 'strains her credibility': Arbitrator < 76 false claims pg. 1 identified), approached Mac- Donald and said, "Keep that creep away from me." X said that Gajodi had earlier grabbed the TV remote from X and then put soap into X's mouth. MacDonald peered into the bath- room and saw a dry bar of soap with no bite marks. MacDonald told X that she would report the incident to her supervisor. But at 10 p.m., after she finished her shift, MacDonald didn't write a report for her supervisor Edira Buell, a registered nurse, because she was "not in full trust that (Buell) would take it seriously," she testified. The next day, MacDonald ad- vised Donna Grace, RN super- visor, about what she had heard from X. On March 14, MacDonald sub- mitted a report that included her conversation with X. Another resident care worker, also testified that she had a con- versation with X and the original soap allegation was repeated. X also told her that Gajodi had "stripped (X) off," and X was emo- tional while recounting the expe- rience. A registered nurse also testified that he approached X after hear- ing about the story and heard the same account. Grace then visited with X and after asking if X has had any con- cerns about staff members, said, "Yes, I did. (Gajodi) tried to get me to take my clothes off, she took my remote and she put soap in my mouth." Wendy Holland, director of care and nursing, asked all rel- evant employees about what they heard from X and then on March 20, issued a termination letter to Gajodi. "An investigation was conduct- ed and revealed that the resident had complained and recounted the incident to four other employ- ees. The details of each recount re- mained the same," said the letter. On April 3, the union, Cana- dian Union of Public Employees (CUPE), Local 2523, grieved the termination. Gajodi testified that during the incident in question, she didn't put any soap on a facecloth but she only handed a wet cloth to X and after seeing X was agitated, Gajodi left the room. Gajodi also testified that the fact MacDonald reported a bar of soap was surprising because the home doesn't use bars, only liquid soap. Arbitrator Michel Doucet Chair (backed by fellow board members Wayne McMillan and Bob Crockett) upheld the griev- ance and ordered Gajodi to be re- turned to her former status at the nursing home and to be compen- sated for time missed. "The board concludes that the employer has not met its burden and that is has not been able to es- tablish that there was just and rea- sonable cause for the imposition of a disciplinary measure against (Gajodi)." The arbitrator expressed con- cerns about the way the employer presented its witnesses and its in- vestigation. "Edira Buell was not called as a witness and no reason was given to explain her absence. Even though she was the registered nurse on duty that evening, she was not asked to file a report and, accord- ing to Holland, she was not inter- viewed during the investigation process." "Because of all the inconsis- tencies in the evidence, the board concludes that the employer has not been able to establish its case on a balance of probabilities. There is no clear evidence that (Gajodi) put soap in X's mouth or that she took his remote away and that she 'stripped' or 'ripped' his or her clothes off," said Doucet. Reference: Atlantic Baptist Nursing Home and Canadian Union of Public Employees, Local 2523. Michel Doucet — arbitrator. Chris Montigny, Emily Campbell for the employer. Bill McKinnon for the employee. April 9, 2018. 2018 CarswellPEI 22 < Nursing home pg. 1

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