Canadian Labour Reporter

June 25, 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 25, 2018 ARBITRATION AWARDS working on the dock of the Har- bour Grace, N.L., facility when Dove asked Whalen to remove his hoodie. Workers were not allowed to wear a hood over their heads due to moving forklifts operating in the warehouse, said Dove, be- cause it was highly dangerous. But Whalen refused and he said he was cold and he needed the hoodie to remain on covering his head. After again denying the re- quest, Dove told Whalen to go to the office and speak to a supervi- sor. But Whalen left the ware- house area and said he was "not going to the fucking office and you can go fuck yourself." John Mercer, supervisor, testi- fied he didn't see the confronta- tion but he heard Whalen swear- ing loudly at someone. He spoke with Dove who advised him that Whalen may be back at the office. When Mercer returned to the office, he saw the glass part of the door was broken and Whalen had a bloody hand. Whalen admitted he broke the glass and he offered to pay for the damages. Whalen was ordered to go home, but he stayed for an extra three hours waiting for a friend to pick him up. During this time, he spoke with Megan Noseworthy, human re- sources, about the incident. Wha- len changed his story and he said it was an accident. Whalen was terminated via let- ter that also said, "You will be paid your unpaid wages less $190.65, which is the total amount to re- place the window which you de- stroyed." On Oct. 13, the union, Fish, Food and Allied Workers (FFAW) grieved the decision and argued the punishment for a single inci- dent was too harsh. FFAW also said the fact that Whalen was cold and wet that day (he lived in a place without heat or light) was a mitigating factor and it explained his wrongful behav- iour. However, the company coun- tered and said that because Wha- len had received two previous let- ters on his record when he didn't show up for work, the broken win- dow was a third and culminating incident. Arbitrator James Oakley dis- missed the termination and or- dered "the discharge of (Whalen) be replaced with a disciplinary penalty of a nine-month suspen- sion without pay. It is ordered that (Whalen) be reinstated subject to the nine-month suspension and be paid compensation." The company's contention that it was his third incident was dis- missed by the arbitrator. "(Whalen) had one written warning on his record for failing to report to work without a valid reason. He did not otherwise have any disciplinary record, and this may be considered as a mitigating factor," said Oakley. "I find that the offence was committed on the spur of the moment and it was due to the emotional impulses of (Whalen) related to the fact he was cold and did not want to remove the hoodie from his head, and this is a miti- gating factor." Whalen did change his story initially, said Oakley, but "in his testimony, (Whalen) agreed that the damage was caused by his use of excessive force on the door. (Whalen's) admission at the hear- ing is a mitigating factor." Reference: Harbour Grace CS and Fish, Food and Allied Workers. James Oakley — arbitrator. M. John Mate for the em- ployer. Greg Pretty for the employee. Nov. 14, 2017. 2017 CarswellNfld 526 Worker's violent reaction 'spur of the moment': Arbitrator < Slamming pg. 1 neath his skill level and the formal charge could mean that his iden- tity would be made known as this might harm the reputation of the Vancouver Coastal Health Au- thority (Integrated Medical Im- aging), the employer suspended the worker without pay. But the technologist's medical benefits were still made available. During his time at the "make- work project" of 18 months, argued the employer, the technol- ogist was often performing dupli- cate work or piecemeal jobs. The employer said that other employees began to suspect the reason given — that he was work- ing on a "special project" — was not true. The union, Health Sciences As- sociation (HSA), grieved the sus- pension and argued it should have been issued with pay. The HSA also said that the technologist was currently work- ing part-time (32 hours) at $11.55 per hour, and this represented a serious economic hardship to him. The union said because the employer was a large regional health authority, it cannot argue that paying the technologist — for not performing productive work at the hospital — could be con- sidered to constitute undue hard- ship. Arbitrator Joan McEwen up- held the suspension. "Based on the evidence be- fore me, I am satisfied that, upon learning of the laying of the three charges of sexual assault on pa- tients, the employer acted reason- ably in suspending the grievor," said McEwen. "A trust relationship between hospital staff and patients is vital. X-ray technologists work in- dependently and often without supervision, dealing with vul- nerable patients. The number of charges and patients in the case at hand give cause for grave concern about trust." The employer's decisions to first move the worker to a non-pa- tient area was deemed to be pru- dent and it did not infringe upon the worker's rights, said the arbi- trator. "As noted, while the employer had worked assiduously to ac- commodate the grievor's interests for the 18 months preceding that event, it had come to realize, well before then, that the so-called 'project' was in fact nothing more than a 'make-work' project. Fur- ther, the fact that the laying of criminal charges is information available on the internet played a significant role in the employer's determination that the grievor's work should be suspended," said McEwen. "The employer went the extra mile in honouring the grievor's dignity as well as his interest in maintaining the security of his employment and livelihood ," said McEwen. "For a full 18 months (from no- tice of the RCMP investigation to the laying of the charges), it cob- bled together the best package of duties possible in the circum- stances — including adapting and modifying them as circumstances required. As well, it paid for ex- penses incurred as a result of his commuting a greater distance from his home," said McEwen. Reference: Vancouver Coastal Health Authority and Health Sciences Association. Joan McEwen — arbitrator. Arvin Asadi for the employer. Stephen Hutchinson for the employee. April 17, 2018. 2018 CarswellBC 1320 < X-ray technologist pg. 1 "The employer went the extra mile in honouring the grievor's dignity as well as his interest in maintaining the security of his employment and livelihood."

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