Course: MGMT9830: Industrial & Labour Relations

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

Role to take: Union Perspective

References: (a-d) (See below)

Instructions: Numbers 1-6 (See Below)

Case Study: Images 7-8 (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 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 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)