Canadian Labour Reporter - sample

8 Canadian HR Reporter, a Thomson Reuters business 2019 March 11, 2019 ARBITRATION AWARDS 8 stub unless required by a collect- ive agreement." The workers were given the option of accessing one of two kiosk computers located on site, that were hooked up to printers. Employees were allowed to access their pay information and print out pay stubs, if they wished. However, on Dec. 20, 2017, the United Food and Commercial Workers Union Canada (UFCW), Local 175 filed a grievance that alleged the employer violated sec- tion 18.01 of the collective agree- ment by not providing paper pay slips. "Each employee shall be pro- vided with an itemized statement of his/her wages, overtime and other supplementary pay and de- ductions (pay stub)," said section 18.01. The employer denied the griev- ance and said that because it pro- vided the two computer kiosks that were hooked up to printers, that meant it satisfied the agree- ment. Geraldine Alinsod, who worked in housekeeping and was a union steward for 11 years, testified that the average age of full-time employees was 50, with one employee being 85 and a few others were in their 70s. Many employees also did not have English as their primary language, and many were not comfortable using computers. Alinsod said that she had some familiarity with computers, but she had experienced multiple issuing trying to access her own pay stub, including once when she was asked by her real estate agent to produce a pay stub for a prop- erty purchase. As steward, Alinsod heard mul- tiple complaints and a petition to revert back to paper stubs was cir- culated that included 33 names. Lauren Leppik, director of ad- ministrative for Bradgate, said there were initial problems at the outset, but the system was func- tioning properly. As well, four employees were accommodated when they were provided with printouts as they were not able to learn the computerized system. Arbitrator Gail Misra disagreed. "I find that the employer policy of providing em- ployees access to their pay stubs using the MSS database is in breach of section 12(1) of the ESA (Employment Standards Act). The employer has not given all bargaining unit employees a writ- ten statement as required by the Act. I am satisfied that it has not provided reliable and user-friend- ly access to the MSS database such that an employee can be given his or her written statement of wages on or before his or her pay day. I also find that the employer has breached its obligation in article 18.01 that each employee shall be provided with an item- ized statement of their wages, other payments, and deductions, which based on the long-stand- ing practice, is by way of printed statements." Because of the unique structure of the Bradgate Arms employees, Revera was not acting in a proper manner toward its workforce, said Misra. "I am satisfied that the impact of the employer's change in prac- tice on this bargaining unit has been significant because of the make-up of this employee group: They are older workers, whose first language is not English, some of whom may not have access to cellphones or computers (which would limit their familiarity with how they work), and many of whom are not technologic- ally capable of working with the employer's sophisticated MSS system," said Misra. Reference: Bradgate Arms and United Food and Commercial Workers Union Canada, Local 175. Gail Misra — arbitrator. Erin Porter for the employer. Georgina Watts for the employee. Feb. 8, 2019. 2019 CarswellOnt 1853 replacement. The employer, Harbour Grace CS, operated a fishing and har- vesting operation at a dock. It wanted to hire a lead-hand who would supervise loading and un- loading efforts, as well as placing products into cold storage. Verge testified that about 90 per cent of his work in 2017 and 2018, was as a lead-hand, so he felt he was qualified to do the job. However, payroll records showed that Verge only worked 12 lead-hand shifts in 2017. When he attended the inter- view, Verge testified he did well and he proved that he was quali- fied. But the following morning, he was surprised when he was advised that Keith Verge won the position, despite his seniority date of May 26, 2018. George's senior- ity date was Jan. 13, 2005. However, said Jim Gibbons, general manager, Verge gave vague answers during his inter- view, while Keith's responses, and his subsequent performance as lead-hand, proved the employer made the correct decision. Several complaints had been received about Verge's perform- ance, said operations manager Bert Vokey. One was a safety complaint in which Verge didn't report a broken ladder until after a scheduled break, which resulted in an employee being stuck inside a cargo hold until after the break. Another complaint was re- ceived after a customer took of- fense to boxes improperly stacked on pallets, which caused them to get dirt and debris inside. A third issue happened, that illustrated Verge's unsuitability for the lead-hand position, ac- cording to Vokey, was when an employee went to Verge and he told him that he was afraid an- other worker was going to assault him. Instead of going to Verge, the employee went directly to Mer- cer, which was against the proper chain-of-command rules. The union, the Fish, Food and Allied Workers (FFAW)/Unifor, filed a grievance on July 5, 2018, after Verge was denied the pro- motion. It argued that because Verge wasn't given any written repri- mands or warnings during his time working as a lead-hand, it meant he was suitable for the position and he should have been awarded it due to his vast seniority over Keith. The employer countered and argued that due to the three com- plaints and Verge's poor perform- ance during the interview, that proved he wasn't more qualified than the successful candidate. Arbitrator James Oakley dis- missed the grievance. "I find that the employer properly considered all three factors of ability, suit- ability and seniority, and that its assessment of (George Verge) and other candidates was not un- reasonable, arbitrary or made in bad faith. The employer complied with article 12.01 of the collective agreement when it selected Kei- th Verge for the position of lead hand." "The employer assessed (Verge) as not having sufficient ability and suitability for the pos- ition. The employer acknow- ledged that (Verge) was a dedi- cated worker and was suitable for other positions, although he did not have sufficient ability and suitability for the position of lead- hand," said Oakley. And by not properly handling a safety-related situation, that showed that Verge was not suit- able for a supervisory position, according to Oakley. "It was rea- sonable for the employer to con- sider that (Verge) had not prop- erly exercised his responsibility for safety, by not ensuring that the employee in the hold of the vessel had a ladder before the crew left for the break." Reference: Harbour Grace CS and Fish, Food and Allied Workers/Unifor. James Oakley — arbitrator. Megan Nose- worthy for the employer. Greg Pretty for the employee. Oct. 29, 2018. Multiple complaints against grievor while supervising < Lead-hand pg. 1 < Seniors' home pg. 1 Statement promised to employees in collective agreement

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