Course: MGMT9830: Industrial & Labour Relations

Topic: Arbitration and Grievance (The Case of Jane Smith)

Role to take: Management and/ or union

References: (a-d) (See below)

Instructions: Numbers 1-6 (See Below)

Formats: Images 7-9 (See Below)

Case Study: Images 10-11 (See Below)

References: (a-d)

a. https://www.canlii.org/en/

b. https://www.youtube.com/watch?v=_n3WTrWeP70

c. https://www.ontario.ca/page/ministry-labour-immigration-training-skills-development

d.

Case of Jane Smith The Facts: The facts of the case are not in dispute. Jane Smith was a registered nurse employed in the oncology (cancer) unit of University Hospital. Smith is now 35 years old and was hired by University General on June 1, 2009. The hospital has a three-point performance rating system: (1) does not meet expectations; (2) meets expectations; and (3) exceeds expectations. Over the years Smith's performance ratings were \"meets expectations\" for most years and \"exceeds expectations\" for 2016 and 2017. In her role as a cancer nurse, Smith was responsible for monitoring patient care, administering cancer drugs (e.g., chemotherapy, opioids), monitoring patient regimes, and counselling patients and their families concerning care options. Accordingly, nurses on this unit were required to maintain certification as \"cancer specialists.\" Smith received this certification in 2010 and had maintained it ever since. Smith was verbally counselled and received two written warnings for absenteeism on February 14, 2018, July 25, 2018, and October 4, 2018, respectively. A union representative was present for all warnings. She was terminated on November 7, 2018, following a three-day leave of absence without permission. The letter of discharge states that she was terminated for failing to call in sick as well as for excessive absenteeism (19 percent as against a hospital average of 7 percent). A union representative was present during each of the meetings where warnings were presented to Smith. Also, on October 4, 2018, Ms. Gomez (her manager) reminded Smith about the hospital's confidential Employee Assistance Program (EAP). Gomez advised Smith that she could call the EAP about anything, including drug and alcohol addiction or the recent death of her daughter, that might be affecting her attendance. Before her discharge, Smith sought treatment for a drug (a painkiller known as oxycodone) and alcohol addiction. She has been in and out of counselling since October 15, 2018. Between the initial treatment in October 2018 and the time of the arbitration hearing (July 15,2019), she had three major relapses in which she stopped attending her counselling sessions (dates January 3, 2019, February 14, 2019, and March 17, 2019). She has been drug-and alcohol-free since April 11,2019. At the time of dismissal, management was unaware that she was being treated for her addiction. Smith's addiction counsellor, Dr. Asan, believes that she has an 80 percent chance of remaining chemical-free over the next few years. In Dr. Asan's opinion, it was the unexpected death of Smith's eight-year-old daughter, who in March 2017 died in the ER of the hospital where she worked, that caused the subsequent addiction. Specifically, Smith lost control of her car when it hit black ice. An accident followed where she was injured and her daughter subsequently died. Smith was prescribed oxycodone as a painkiller for her accident-related injuries. There is no evidence that Smith ever stole oxycodone from the hospital;, however, that medication is readily available on the cancer unit where she works. Now that her patient has recovered from this tragic event shock, Dr. Asan believes that Smith can maintain an acceptable attendance and performance record as a cancer nurse in the future. Regarding other employees, Ms. Gomez states that only one other cancer nurse, out of a staff of 25, had an absenteeism rate greater than 10 percent (15 percent). That nurse was never given a warning of any kind. Arbitration: The Case of Jane Smith Name of Student: Unacceptable Acceptable Good/Solid Excellent (0-1) (2) (3) Introduction (5) Does not Provides Introduces Strong introduce topics somewhat of report and introduction The introduction clearly and their an provides an of purpose, identifies the purpose of the significance. Does introduction outline of role, and case, role of management or not provide and outline of contents outline of how union and how the case study outline of report report case will be will be presented presented. Total /4 (x5) Analysis (40) Does not provide Somewhat Provides All materials overview of issues addresses good strongly Overview of issues Level of analysis overview of overview of address Depth of analysis and clarity issues. issues overview of Accuracy of observations insufficient and Depth of issues. Strong Use of supporting course- not thorough. analysis and Depth of analysis of related concepts and accuracy of analysis and research Insufficient use of issues course concepts observations accuracy Thoroughness of analysis limited. and research. good. Demonstrates Lacks thorough Use of Good use of research and thoroughness. supporting course accurate Few sources course concepts and application of support research concepts and other course research research. concepts. Sources limited. insignificant/ Sources Sources have Strong inappropriate. somewhat been well application of support selected to research to research. support class concepts Sources are research somewhat Supporting acceptable Level of research is analysis good strong. Level of analysis somewhat Level of acceptable analysis critical thinking excellent Total /4 (x40)Key dates June 1, 2009: Smith hired February 14, 2018: Verbal counselling July 25, 2018: Written warning October 4, 2018: Second written warning October 15, 2018: Smith's initial treatment November 7, 2018: Termination July 15, 2019: Arbitration Relevant Collective Agreement Clause Article 15Corrective Action and Discipline 15.1. Employees can be disciplined only for just cause. Such discipline must be reasonable and commensurate with the seriousness of the violation. 15.2. Both the union and the hospital believe in the concept of progressive discipline. Accordingly, they agree that a verbal counselling should normally take place prior to any disciplinary action. Should an employee's conduct or performance not improve after this counselling, the normal progression of discipline will be as follows: + Step 1: Written warning + Step 2: Second written warning - Step 3: Suspension without pay + Step 4: Termination 15.3. Notwithstanding clause 15.2, it is understood that certain offences are sufficiently serious to warrant immediate discharge and/or a faster progression through the process outlined in 15.2. 15.4. Employees have the right to have a union representative present during any of the steps outlined in clause 15.2. Arbitration: The Case of Jane Smith Unacceptable Acceptable Good/Solid Excellent (0-1) (2 (3) (4) Recommendations (30) Inappropriate Source Sources have Strong Appropriateness of arguments somewhat been well application of arguments support selected to research to Course-related concepts, Inaccurate / arguments/ support support esearch, jurisprudence, etc. insufficient Sources are arguments arguments/ applied accurately and application of somewhat support argument (3-5 research to Demonstrate acceptable Supporting LACS) support argument good research is Demonstrate sound Application knowledge of strong and knowledge of arbitration Knowledge of just of just cause, elements of supports process cause , arbitration arbitration just cause, arguments Reasoning is logical and process not process arbitration consistent demonstrated. Demonstrate somewhat process excellent acceptable knowledge of Reasoning / Reasoning elements of somewhat Reasoning is argument is not just cause, good and logical nor acceptable arbitration makes sense consistent and logical process Reasoning strong, logical and very consistent Total /4 (x30) Summary (5) Does not provide Provides Provides Strong closure concise closure to somewhat of good closure to paper. Very Concise paper a closure to paper and comprehensiv Closure to the paper comprehensi e yet concise provides reader with ve overview highlights of the information that has been presented. Total /4 (x5) Structure (10) Formatting does Formatting Formatting Formatting not at all adhere somewhat adheres to strongly Grammatical and spelling to rubric - no adheres to rubric -cover adheres to conventions adhered to cover page, not rubric -cover page requirements- Formatting (title page, title double spaced, not page, spacing, spacing, cover page of assignment, name, within page length length spacing, length student numbers, length professor's name spelled Some errors Errors in No errors in properly, date the Several errors in in APA and APA and APA and assignment is submitted; APA format and references references references page numbers references rare Length requirement Some Paper is free respected (6-8 pages) Grammatical grammatical Grammatical of O APA style followed errors or spelling spelling and spelling and grammatical, References used (including and punctuation punctuation punctuation spelling and text substantially errors errors aredetract from rare and punctuation paper. don't detract | errors Total /4 (x10) Unacceptable Acceptable | Good/Solid Excellent (0-1) (2) 3) (4) Style (10) Inadequate Somewhat Class Strong application of acceptable concepts application of O Concepts are clear and non- | - concepts application of | have been research to contradictory class applied class concepts O Clarity of arguments and Writing is choppy, | concepts accurately writing style concise awkward and and Writing style is O Class concepts have been unclear Writing has a | adequately | clear. Flows applied accurately few unclear well and is easy O Extra effort conducted passages Writing style | to follow is clear and has minimal | Insightful errors discussion of impact of research on argument Total /4 (x10) TOTAL /100 Grievance & Arbitration Grievance (Ch 9) A grievance is a term used to describe an alleged violation of one or more of the terms of the collective agreement by taking or failing to take action Individual Grievances Actions specifically affecting an individual. Eg. Discipline, denial of OT, vacation, etc. Group Grievances If the action of the employer affects a number of employees in the same manner, a group grievance may be filed Eg. A group of workers allege time off not being allocated per the process in collective agreement, PPE not being provided per CA, etc. Policy Grievance Filed by the union on behalf of all employees, alleging that an employer's action or lack of action is a violation of the collective agreement that affects all employees Eg. New attendance policy, work inappropriately contracted out, etc. Grievance Process /Steps Informal stage Filing the grievance in writing to immediate supervisor Formal complaint and investigation taken to next level of management Final Attempt Before involving a third party Preparing for a Grievance Arbitration Appointment of an Arbitrator The Arbitration Hearing Look to past grievance resolutions for guidance Arbitration (Ch 10) o000 0 000 D0|D Grievance or 'rights' arbitration refers to the interpretation, application or administration of the collective agreement Grievance or \"rights' arbitration differs from interest arbitration as interest arbitration determines the terms and conditions of the collective agreement Standard of Proof The standard of proof used in arbitration is the balance of probabilities the same as in the civil proceedings ... 'on balance' that the version of events is true. i.e. Is it most probable that the grievor did what management alleges? Arbitration Process Consult jurisprudence, past LAC's Management will need to prove there was just cause for discipline/discharge: Did the allegation take place? Was discipline reasonable? If not, what level is appropriate? Management will need to prove grievor is culpable or blameworthy: Were they aware of what was required? Were they capable of performing what was required? Did they choose to do otherwise? Union will present Mitigating Factors: Work record; Length of Service; Isolated Event; Inconsistent application of rules; Premeditation; Remorse/Likelihood of recurrence; Economic Hardship; Provocation; Seriousness of offence; Lack of Understanding. In cases of discharge, Arbitrator will examine whether: Management had reasonable grounds to discipline; Level of discipline imposed was reasonable; and if excessive, what (if any) is appropriate. Arbitrator responds in writing and determine if grievance denied (management decision supported) or upheld (management decision not supported / union's argument accepted)