Canadian Labour Reporter

October 22, 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 October 22, 2018 ARBITRATION AWARDS Open Sky was an organiza- tion that offered employment to adults living with autism or other mental-health challenges. The union also grieved after employment agency Kelly Ser- vices filled the tourism counsellor position. But the town responded via letter that "no member of your bargaining unit has his or her job security affected by the Town's decision to contract out the ser- vices that you have indicated in your grievance." The union cited article 13, which said, "When a new posi- tion is created, or when a vacancy exists, the employer shall post, within thirty (30) working days, the position for a period of ten (10) working days before being filled." Under article 29, the collective agreement called for "work or services presently performed or hereafter assigned to the collec- tive-bargaining unit will not be affected by sub-contraction, so as to affect the job security of the member of the bargaining unit." The Town argued that it could have used article 13, but instead it relied on article 29 when it decid- ed to hire replacement workers for the part-time positions (four hours per day from September to October for the tourism position; 3.75 hours per day from Septem- ber to June for the crosswalk- guard position). Pam Hicks, accounts payable clerk who filed the two griev- ances, testified that in the past, the employer only contracted out for cases when "overflow" existed, such as an extended sick leave or covering for vacations. Michael Beal, town treasurer, testified that he knew of at least three positions in the past that were contacted out and none were grieved by the union. The Town argued that the two open positions were unlikely to be filled by any bargaining-unit members, as they were limited in hours and scope, but also the new hiring had no affect on current members if they were filled by outside contractors. Arbitrator Robert Breen agreed and dismissed the two grievances. "Article 29 of the parties' agree- ment, a 'protective' provision, speaks to a requirement that the Town not affect the job security of a union member. I find there is no evidence of this shown to exist in either instance grieved before me. And, again, there was no griev- ance filed by any employee claim- ing any affect on personal job se- curity, and no evidence that any union member even wanted one of these positions." CUPE had argued that because the two new positions would be directed by town personnel, this constituted a direct relation- ship and therefore the employees should become a part of the bar- gaining unit. However, this was not accepted by the arbitrator. "I am satisfied on my analysis taken here of the 'contracting ar- rangements' that the two con- tractors are and remain in 'funda- mental control' of the employer/ employee relationships estab- lished. It is the two contractors, I find, who control the most basic and fundamental aspects of the work life for the two hires, includ- ing the burden of remuneration, and authority over their hiring and employment retention," said Breen. "I find, on the evidence led be- fore me, nothing to support an al- legation of 'bad faith' by the Town. There is no question that this employer in fact acknowledges that a posting is required when or if an employee's job security is affected. As to the two vacancies in dispute, the Town plainly un- dertook to satisfy itself, and I find that it did so in a reasonable way, that no union member's job secu- rity was affected by the contract- ings intended." Reference: Town of Sackville and Canadian Union of Public Employees, Local 1188. Robert Breen — arbitrator. Pierre Bertrand for the employer. Marcos Salib for the employee. June 27, 2018. aides stopped what they were do- ing and AB was wheeled back to his bed. Davis and Heuso dried AB and gave him a brief lotion rub, but Heuso said he didn't receive a full washing. Heuso reported the incident to management, who held three separate meetings with Davis (on Aug. 19, Sept. 2, and 8). Each time, the answers provided by Davis changed. Davis also said she didn't re- port the incident to the registered nurse (RN) on duty because it slipped her mind as the shift was busy. Davis was terminated on Sept. 12. GSS said Davis commit- ted multiple errors on the day in question and none of them were documented as was required. As well, Davis was not honest in her answers on multiple occasions, according to GSS. The union, Alberta Union of Provincial Employees (AUPE), grieved the firing and argued Davis was not dishonest but she struggled with language issues and stress from worry that she would lose her job during the in- terview process. The employer argued that a let- ter written on Aug. 23 by Davis, as well as the various facts provided during the interviews, showed she was not truthful and tried to cover up the incident by not reporting it. Arbitrator David Tettensor (backed by fellow board member Michael Hughes Member, but dis- sented by Vern Bartee) found the employer was justified in firing Davis. "I agree with the employer's submission that (Davis') evolv- ing story of the events was pre- meditated. (Her) two admissions were only partially true and were deceptive. (Davis') lack of can- dour and attempts to cover up the shower incident are a refusal to accept responsibility and justify the lack of trust that the employer now has that (she) would honestly and properly complete her duties." Davis' actions showed she was not qualified to continue working at GSS, said the arbitrator. "(Davis) did not follow the specified procedures for checking the water temperature before she put the water on AB. While I have serious doubt that she covered AB's stoma, it is clear that water entered the stoma causing AB to cough, wheeze, go red in the face and have obvious trouble breath- ing," said Tettensor. Davis' actions after the incident showed a clear attempt to cover up, according to the arbitrator. "(Davis) made no reference to the incident in her charting, instead she completed the charting by stating that everything had been done as required for AB. (Davis) did not compete a progress note outlining the incident which she knew was to be done when some- thing occurred which is not nor- mal or typical." "It is clear from the authorities that dishonesty in the health-care field as to the care of vulnerable persons such as AB is a breach of the public trust resting with both employees and employers and goes to the core of the relation- ship," said Tettensor. "All of the evidence leads me to conclude that despite her concern about the distress caused to AB by what she concluded was water entering his stoma, (Davis') failure to report the incident to the RN and to properly chart the incident was intentional: She did not want to make the employer aware of the incident." Reference: Good Samaritan Society and Alberta Union of Provincial Employees. David Tettensor — arbitrator. Hugh McPhail for the employer. Greg Maruca for the employee. Sept. 4, 2018. 2018 CarswellAlta 2042 < Health-care aide pg. 1 No evidence of negative effect on job security: Arbitrator < Doesn't post pg. 1 "(Davis') failure to report the incident to the RN was intentional."

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