Canadian Labour Reporter

January 13, 2020

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 HAB Press business 2020 January 13, 2020 ARBITRATION AWARDS management that she was con- cerned for her physical safety at work due to the harassment and threats. She particularly was con- cerned about the other employee confronting her in the plant's parking lot. Canada Post proposed allow- ing Dowhan to park in a fenced area when she came to work but it didn't take any other action. Dowhan continued to work shifts at the plant that overlapped with those of her former partner. A short time after Dowhan brought her concerns to the cor- poration, she became ill and went on short-term disability (STD). She remained on STD benefits for nearly two months until Sept. 28. While she was on STD leave, Dowhan decided to apply for a part-time mail clerk position in Sarnia, Ont. She won the job and started working there when she returned to work. Dowhan's former partner re- signed from his employment with Canada Post in August 2018. The union filed a grievance on Dowhan's behalf, claiming Canada Post breached the col- lective agreement article that re- quired it to "prevent and correct any situation and any conduct liable to compromise the health and safety of employees" when it failed to take action to address her concerns for her safety in the workplace. It demanded that Dowhan be placed back in a full-time mail clerk position in one of three locations, be compensated for lost earnings for the period of time she worked in the part-time position and be awarded $20,000 in punitive damages. The arbitrator found that Canada Post didn't meet its duty to protect Dowhan's safety un- der the collective agreement. It's proposal to allow her to park in a fenced area was insufficient to ad- dress her concerns. The arbitra- tor noted that the corporation's corporate procedures required an investigation into such a com- plaint and its failure to do so pre- vented it from properly address- ing Dowhan's concerns. "Absent an investigation the corporation was not in a position to meaningfully assess the seri- ousness of Dowhan's concern for her physical safety and to govern itself accordingly," said the arbi- trator. Since Canada Post breached its duty under the collective agree- ment, the arbitrator ordered it to pay Dowhan the difference in what she would have made had she continued working full-time after she started her STD leave and what she made in her part- time position and received in STD benefits. The corporation was also or- dered to provide Dowhan with the option of remaining in the part-time position in Sarnia or re- turning to her full-time position in London — with Dowhan's for- mer partner no longer working in London, the threat to her physi- cal safety there no longer existed and Canada Post was required to offer her a full-time position else- where, said the arbitrator. The arbitrator declined to award punitive damages, finding that there was no indication that Canada Post's failure to follow its policy for dealing with employee concerns for safety was part of a pattern or motivated by a desire to harm Dowhan. Reference: Canada Post Corp. And CUPW (Dowhan). Kevin M. Burkett — arbitrator. Joe Stone, Gisele Miller for employee. June 26, 2019. 2019 CarswellNat 2985 excess of 12 hours per day and/or 42 hours per week" and overtime pay would be one and one-half times the employee's regular rate of pay. All hours worked on Saturdays or Sundays would also be at time and one-half. On Aug. 1 and 2, 2017 — a Tues- day and Wednesday — Cavendish shut down production at the plant to save costs and production em- ployees didn't work their sched- uled shifts. The company offered them work on Friday, Aug. 4 to help make up production and give employees the chance to make up for lost hours, and any volunteers who accepted were paid their regular straight-time rate for that day. No one was required to work the Friday and had no one volun- teered, Cavendish would have shut down the plant for the day. The Union of Food and Com- mercial Workers (UFCW) union filed a grievance claiming that there was an understanding that employees who worked on what would normally be a Friday day off would be paid at the overtime rate. As a result, the production employees who volunteered to work on Aug. 4 should have been paid time and one-half. The union's grievance was based on assurances it claimed it had received from Cavendish dur- ing the 2010 bargaining process for the five-year collective agree- ment before the current one. It was that agreement that established the Monday-to-Thursday contin- uous shift: prior to that, Cavendish operated on a Monday-to-Friday eight-hour shift rotation. At the time, it was a significant change to the production shift pattern, so the union claimed Cavendish had said that continu- ous shift production employees would be paid at overtime rates for any hours worked on Fridays. The union indicated that it didn't want employees penalized for a shutdown on a regular day. The union pointed to a proposed collective agreement article during the 2010 bargaining that stated, "all hours actually worked by an em- ployee on a Friday, Saturday or on a Sunday shall be paid for at one and one-half times the employee's regu- lar straight time rate of pay." However, this didn't make it into the final agreement and resulted in a "latent ambiguity" in the collec- tive agreement, the union said. The arbitrator found that the existing provisions in the col- lective agreement "could not be clearer. The collective agreement continuous shift provisions read as a whole clearly specify that hours worked on a Friday are not over- time except to the extent that a production employee works more than 12 hours that day, or his/her workweek hours exceed 42." The arbitrator noted there was no documentation of the "gentle- men's agreement" that the union claimed had been reached and the union had made no effort to con- firm it when the next collective agreement was negotiated in 2015. The only evidence was hearsay af- ter years had passed, which wasn't enough to overrule the existing agreement, said the arbitrator. "Verbal side deals which are inconsistent with subsequently agreed-to clear... language of a collective agreement cannot be given any effect," said the arbitra- tor. "Giving such 'deals' collective agreement effect undermines both the collective bargaining process and the fundamental premise of the [Ontario] Labour Relations Act, 1995 that a 'collec- tive agreement' is an agreement in writing which provides the terms or conditions of employ- ment, including the rights, privi- leges, duties and obligations of the employer and union parties to, and the bargaining unit em- ployees covered by, the collective agreement." Reference: Cavendish Appetizers and UFCW, Local 175 (R517-0165). George Surdykowski — arbitrator. Andrew Zabrovsky for employer. Jane Mulkewich for employee. June 13, 2019. 2019 CarswellOnt 10265 < Side deal pg. 1 < Canada Post pg. 1 Harassment forces worker to leave for part-time position Verbal 'gentlemen's agreement' can't overrule agreement

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