Canadian Labour Reporter

January 20, 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 20, 2020 ARBITRATION AWARDS basis, inclusive of one unpaid hour off for lunch" but recognized that certain work areas may re- quire different hours, such as dur- ing evenings. The posted sched- ule to which the city assigned employees involved rotational shifts that required all employees to work at least one week with a Tuesday evening or Saturday shift. The union filed a grievance when the city scheduled employ- ees to a posted schedule, argu- ing that it hadn't properly posted work schedules when it ignored the "expression of interest" part. It argued the collective agree- ment required the city to consider employees' interest and should only schedule employees accord- ing to schedule needs once it had fulfilled as many employee pref- erences as possible. In addition, the imposition of the rotational schedule deprived employees of the opportunity to express their interest for working the required hours as set out in the collective agreement. The city countered that it had the right to schedule employees as it wishes according to its needs, subject only to the collective agreement restriction to schedule hours within the normal workday and normal work week while tak- ing into consideration of employ- ee expressions of interest. The arbitrator noted that "as a general proposition, management has the right to operate and man- age the workplace as it considers appropriate" — a right that was also enshrined in the collective agreement — and setting the work schedules for employees was part of that, subject to certain limita- tions in the collective agreement. In addition, the collective agree- ment recognized that the hours of the normal work week and workday could vary between and among the different work areas. The arbitrator found that the collective agreement's require- ment that the city consider any expressions of interest by em- ployees to work the required hours "when assigning normal work days and normal work weeks," made it clear that the city had the right to schedule employ- ees as it needed to and dictate the structure of the work week, not the other way around. "The employees' right to ex- press interest in the 'required hours of work' is the right to ex- press interest in working one or more of the schedules set by the employer, not the right to express their interest in which hours they prefer to work each day or on which five consecutive days and hours they prefer to work in each individual week of a multi-week schedule," the arbitrator said. "There is nothing in the language used in [the collective agreement] that suggests that the parties in- tended to so restrict the employ- er's right to schedule employees and indeed, the words found there suggest otherwise." The arbitrator concluded that the collective agreement permit- ted the city to schedule rotat- ing schedules where different employees could work differ- ent hours or days each week, as long as the schedules fell within the standards of five consecu- tive eight-hour days during the Monday-to-Saturday period and employees could express interest in these schedules once they were shared, not during their develop- ment. Reference: London (City) and CUPE, Local 101 (05-16). Robert Herman – arbitrator. Adriana Hagan, Kimberley Benoit for employer. Michael Klug, Steve Holland, Phil Boyd for employee. June 11, 2019. 2019 CarswellOnt 10268 signing cheques and auditing fi- nancial statements for the regions. In February 2016, the CEIU was placed under trusteeship and Chartrand was appointed as the acting director of finance and administration for a few months until a new permanent director was named. In early February 2017, the CEIU's insurance broker told the HR manager that an audit of Chartrand's insurance claims had found she had committed fraud. e broker passed along the results of the investigation that found 11 claim submissions for services that hadn't been per- formed as submitted, six that were misrepresented and 25 with inflated charges. It had asked Chartrand to provide receipts for the claims, but she was only able to do so for a handful. Several of the claims involved payment for appointments that were "no-shows" and a few were for which Chartrand paid with cheques that bounced. The false and misrepresented claims totalled $2,493 and most were from 2016 — the plan re- quired members to keep receipts for 12 months following submis- sion to determine eligibility or in case of an audit — though some went back as far as 2011. Since all of the claims had been submitted online, Chartrand had been barred from submitting claims electronically. The CEIU administrator met with Chartrand to discuss the claims and Chartrand said she "must have messed up." She ex- plained that sometimes she put in different dates for chiropractic treatments on the same day and combined massage receipts into one claim for "little amounts." She also said she had trouble sub- mitting claims for her daughter because she was also covered by her ex-husband's plan — how- ever, some of her daughter's treat- ments she had claimed weren't covered at all under the CEIU plan. Chartrand maintained that she had made mistakes and hadn't stolen anything. The administrator didn't see any evidence to support the idea that Chartrand had made an hon- est mistake on all the claims, par- ticularly since she didn't notify the CEIU about the audit or removal of her electronic submission privi- leges. A short time later, the CEIU terminated her employment for benefit fraud and breach of trust. The arbitrator noted that the CEIU relied mostly on the insur- ance provider's audit and its own investigation consisted only of a short meeting with Chartrand. However, it also noted that some- one in Chartrand's role with CEIU would know the impor- tance of not seeking reimburse- ment without the correct sup- porting paperwork. The arbitrator found there was clear evidence of dishonesty on Chartrand's part — she didn't pay the service providers after certain cheques bounced and in- stead kept the money after filing the claims. This wasn't a mistake, but rather enriching herself at the expense of both the service pro- viders and the insurers. In these instances, Chartrand sought pay- ment for services she hadn't paid for, which provided context when looking at the other challenged claims, said the arbitrator. Many of the other claims were for services that weren't covered, which Chartrand chalked up to mistakes or "sloppiness," but the arbitrator disagreed. The misrepresented claims showed a pattern of dishonesty deserving of discipline, the arbi- trator said, adding that her posi- tion in an important financial role meant such dishonesty was seri- ous and warranting dismissal. "It is inconsistent with [Char- trand's] own job duties to seek reimbursement without the re- ceipts to back it up," said the arbi- trator. Reference: COPE and CEIU (Chartrand). Laura Trachuk – arbitrator. Charles Hofley, Melissa Bastarache, John Gordon for employer. Glenn Wheeler, Danielle Chartrand, Sharon Barbour, Bert Poulin for employee. June 16, 2019. 2019 CarswellOnt 9799 < Dishonesty pg. 1 < Work schedules pg. 1 Workers couldn't influence schedule creation: arbitrator Several fraudulent benefits claims worthy of dismissal

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