Discipline and Discharge - Stewart McKelvey

Discipline and Dischargepercentage rate below the threshold requiring prohibited by an employer policy. Since thethat the grievor be reinstated.employee didn’t resign, the onus was on thecompany to establish just cause for discharge.Loblaws Supermarkets Limited and United The employer established that the employee hadand Commercial Grievors Canada (Wendy access to confidential time sensitive companyChapman)pharmacy information and that the subsequentemployer was a competitor. The employeeWhat happened: The grievor was a pharmacyplaced herself in a clear conflict of interest whenassistant who took a full-time job with ashe took the full-time job with the competitor.competitor. She resigned her full-time positionHowever, some evidence was accepted that thewith the employer, but requested to maintaincompany had acted inconsistently in the pastpart-time hours. The employer had a meetingwith respect to treatment of employees who hadwith her and a union representative in whichplaced themselves in similar situations. Thethey conveyed the message that they couldarbitrator allowed the grievance. The arbitratoraccept her resignation and request for part timereinstated the grievor to a part-time position withhours. However, it was unacceptable for her tothe employer without loss of seniority, subject tomaintain the same position if she would bean agreement that she maintains theworking for a competitor. Subsequently, by letterconfidentiality of all company pharmacythe employer proposed that she maintain herbusiness information.part-time hours and union seniority, but in a noncompetitiveposition in their general department Cargill Limited and United Food andi.e. working as a health and beauty advisor. Commercial Grievors Canada, Local 175 (J.When the employee didn’t respond to this Donovan)proposal, the employer took this to mean thatthe grievor was declining the proposal. The What happened: Grievor employed at meatemployer then subsequently terminated her processing plant. He was 50 years old at theemployment. The employer testified that they time of his discharge with no disciplinary record.considered having an employee work for a The grievor took an eight-month medical leave.competitor in the same position to be a conflict When he returned, the employer said someof interest. The employer had a Code of changes had taken place. A second location hadBusiness Conduct to this effect. Grievors weren’t closed and some of the employees wererequired to sign off on this code, but the relocated to the grievor’s location as temporarydocument is brought to the attention of employees. Also, new training requirements hadbargaining unit employees.been implemented for operating forklifts andother machinery, which the grievor had beenWhat the arbitrator said: Reinstate grievor. operating for many years without having hadArbitrator noted that employees are obliged to training. He was reassigned until he couldnot engage in activities that conflict or appear to complete the training, which didn’t make himconflict with their employer’s interests. Further, happy. On two occasions, he made commentsthis duty exists whether or not it’s expressly- 11 -