Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2019 January 14, 2019 ARBITRATION AWARDS 8 (including without limitation wages, vacation accrual, pension contributions, sick-time accrual), an employee must be employed as of the date the parties signed this agreement." But in November 2017, the union discovered some retro- active adjustments that negatively affected certain employees. In some cases, employees lost sick leave, vacation entitlements, and it discovered Easter Monday as a holiday would be clawed back for the former Strathclair work- ers. On Dec. 8, the town sent a list of employees who would lose some formerly earned benefits to the union: Five employees would each lose two accrued holidays due to Easter Monday no longer being a day off for the Yellowhead employees. A few others had sick time and other holiday time removed from their sick and vacation banks. The IUOE argued that the LOA should be interpreted as only providing new benefits and it didn't allow for the employer to retroactively remove employee benefits that were already earned. The municipality countered and said the term benefits should not be construed to mean only positive items for workers, but in terms of fairness to the taxpay- ers, the new agreement must also be interpreted to standardize all benefits levels, including days off, for all employees. The arbitrator, A. Blair Gra- ham, disagreed and found the employer breached the collective agreement. "Notwithstanding the very able arguments of counsel for the employer, there is nothing in the wording of the LOA which con- templates a downward adjust- ment of sick time or vacation time or general holidays to account for any lessening of monetary bene- fits under the collective agree- ment, relative to the benefits pro- vided by the Strathclair and Shoal Lake collective agreements," said Graham. The union's argument about the plain wording of the LOA were more persuasive than the employ- er's, said Graham. "The subject line or heading of the LOA is 'Regarding retro pay.' The inclusion of the word 'pay' in the subject line suggests that the subject of the LOA is the entitle- ment of employees to receive pay retroactively. This is consistent with the union's arguments that the LOA deals with items which are beneficial to employees such as pay and monetary benefits," said Graham. "The concept of qualifying for a benefit (by remaining employed until a certain date) is entirely consistent with the proposition that the LOA was only intended to address the retroactivity of pro- visions which were beneficial or advantageous to employees, rela- tive to the collective agreements being replaced, not the retroactiv- ity of provisions which were dis- advantageous to employees." And because there was nothing written into the LOA that speci- fied any loss of benefits, "in order to deprive those employees of any portion of those benefits, which they had earned and had already received by the summer of 2017, clear language expressing such an agreement would be required," said Graham. "Those employees had there- fore earned and had become en- titled to the monetary benefits provided for under those col- lective agreements, while those agreements remained in effect, namely until the summer of 2017," said Graham. Reference: Rural Municipality of Yellowhead and International Union of Operating Engineers (IUOE), Local 987. A. Blair Graham — arbitrator. Jeff Palamar for the employer. William Sumerlus for the employee. Oct. 30, 2018. 2018 CarswellMan 547 she wanted to know why. After checking the records, Boyer told the client that she had undeclared income and had also been living with a man, so the funds were withheld. The client told Boyer that she had worked as a property manag- er, but only received a reduction in rent from her landlord. The following day, the client and the landlord went to Boyer's office for a meeting. The client completed a form that said she had worked for the landlord since January 2013, but had not been paid and instead received a rent discount for the work. Boyer did some digging and found that the client had been previously convicted of em- bezzlement. After the probe was done, Boyer believe the client participated in a fraud. Boyer met with her supervi- sor, who directed her to calculate the overpayment the social ser- vices department had made to the client. Afterward, Boyer calcu- lated that the client would receive a reduction in benefits until the overpayment was reimbursed. After this was done , Boyer cal- culated she spent one-and-a-half hours in the interview, two hours on the investigation and meeting her supervisor, as well as arrang- ing overpayment documents be- fore closing the file. Boyer requested she be paid 3.5 hours at the higher classification rate of the eligibility review officer (ERO) category. After the request was denied, Boyer and the union, the Canadian Union of Public Em- ployees (CUPE), Local 543 Wind- sor Municipal Employees, filed a grievance. CUPE argued that the provi- sion in the collective agreement determined that Boyer was acting in the capacity of the ERO when she investigated the potential fraud and, therefore, she should be paid the higher amount. The collective agreement said: "When an employee is appointed or requested by his/her depart- ment head temporarily to per- form work of a character for which a higher classification is provided, he/she shall be paid immediately (at a higher rate)." However, the employer coun- tered and said initial investiga- tions of eligibility were part of a caseworker's purview and that was what Boyer was doing. Arbitrator Howard Snow dis- missed the grievance: "I find that in doing this work of a preliminary review, the grievor was not do- ing work which was similar to the work done by the eligibility review officers." Boyer was simply doing her own job, said Snow, and "the work which (Boyer) did here in con- ducting what is generally referred to as a 'preliminary review' or an 'initial investigation' is not work done by eligibility review officers." As caseworkers had done simi- lar work in the past, Boyer was not eligible to receive acting pay, said the arbitrator. "Caseworkers have long done the work (Boyer) did here, whether that work is described as a preliminary review or as a fraud investigation. Why might the par- ties have intended that casework- ers would now be paid acting pay for work they have been doing for the last 30 or more years?" said Snow "Although I accept that it is pos- sible these parties intended that this work would attract acting pay, I cannot think of a reason why the parties would have intended that a caseworker should be paid at a higher pay rate for doing work which for many years has been part of the regular duties of the caseworker." Reference: City of Windsor and Canadian Union of Public Employees, Local 543 Windsor Municipal Employees. How- ard Snow — arbitrator. Leonard Kavanaugh for the employer. Stephen Krashinsky for the employee. Dec. 11, 2018. 2018 CarswellOnt 21143 Caseworker acted in same capacity as others in last 30 years < Acting pay pg. 1 < Claw-back pg. 1 LOA only intended for beneficial provisions: Arbitrator

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