Union claims worker denied representation at time of dismissal
Scott Meilleur was a lead hand with six years of service at the Ontario-based Canadian Nuclear Laboratories when he was dismissed.
Meilleur, along with several other employees, was fired for theft after an investigation revealed scrap material was being removed from the premises. The employer serves, in part, as a depository for nuclear waste. Because the stolen material was not scanned for radioactive contamination before its removal from the employer’s property, it posed a serious risk to public safety. Due to the seriousness of the theft, Meilleur was banned from attending the workplace in addition to his dismissal.
Meilleur’s union, the International Union of Operating Engineers (IUOE) Local 772, grieved the termination.
The union argued Meilleur was denied union representation at the time of his dismissal.
Hearings were held in June and September of 2013. In an award dated July 14, 2014, the arbitrator hearing the case found the collective agreement’s union representation provision had been breached. Due to the delay in issuing an award, it was decided a remedy would be assessed when the case was heard on its merits.
In the meantime, Meilleur obtained employment with a contractor who often works on Canadian Nuclear Laboratories’ premises. The trespass ban, however, prevents Meilleur from attending at the workplace when his new employer is attending a job there. Therefore, the union requested an order directing that Canadian Nuclear Laboratories allow Meilleur to work on its site as an employee of the contractor.
The case was arguable, according to the union, because there would be no potential for harm to the employer. Meilleur would be supervised at all times by the contractor, the union said, and refusing to allow Meilleur to attend work with his new employer while awaiting a decision in the preliminary matter of his dismissal is causing unnecessary economic harm.
The employer, however, said Meilleur was dishonest and unco-operative when confronted with his participation in the theft. While Meilleur did eventually admit to his culpability, the employer argued, he was not remorseful in doing so.
Meilleur was fired for serious and admitted misconduct, the employer said. The only proof of Meilleur’s financial hardship was the union’s word, the employer argued, and that was insufficient evidence to grant the request for interim relief given the serious matter for which he was fired.
Arbitrator William Kaplan agreed, ruling the application for interim relief be denied.
"The fact is that the grievor, a lead hand, has admitted his participation in the removal of the employer’s property from its premises," Kaplan said. "Termination, however, may or may not be appropriate when other factors like his long service, clean record and denial of union representation are considered.
In the meantime, there is a request that a person who took the employer’s property without permission be allowed to work on the employer’s premises."
Kaplan found there was no evidence of economic hardship resulting from the trespass ban and also argued there was no evidence the grievor would be subject to appropriate supervision by his new employer while on Canadian Nuclear Laboratories’ premises.
"It should also be borne in mind that the case has now been scheduled on the merits and will be heard before too long," Kaplan said. "Accordingly… the union’s application is denied."
Reference: Canadian Nuclear Laboratories and the International Union of Operating Engineers (IUOE) Local 772. William Kaplan — arbitrator. Robert Henderson for the employer, Lisa Triano for the union. March 3, 2015.
