Canadian Labour Reporter

February 10, 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 February 10, 2020 ARBITRATION AWARDS ensure there were no leaks. This was part of a written procedure that was reviewed with Crozier and was available for review in the cellars. On Nov. 19, 2018, Crozier was given a work order to move 5,945 litres of wine to several receiving tanks. Crozier was feeling tired that day, as it was a busy time of the year and he had worked a lot of overtime. He flushed the lines and asked a co-worker to start the transfer, but he had forgotten to close off the water and open the valve to divert wine to the receiv- ing tank. After about 20 minutes of waiting, Crozier went to the re- ceiving tank and noticed wine on the floor and going down the drain. He realized he had failed to switch the valve to divert wine into the tank and when he turned off the pump the tank was empty. Crozier informed the opera- tions manager that he had lost some wine, he "screwed up and what could he say," and he was "very, very sorry." Mission Hill lost 5,680 litres of Sauvignon Blanc with a retail value of more than $162,000. On Dec. 17, 2018 Mission Hill terminated Crozier's employ- ment for "negligence in seller duties culminating with you pumping 6,000 litres of Estate Sauvignon Blanc down the drain." The termination letter added that the winery also considered that in 2017 Crozier had made the same mistake and flushed 11,000 litres of wine down the drain. The union grieved the dismiss- al as too harsh, noting that the collective agreement had a sunset clause eliminating past discipline after 12 months of discipline-free service. The arbitrator noted that the collective agreement excluded disciplinary history outside the specified time limits for deter- mining level of discipline, but Crozier's employment record could be considered for context and pattern of behaviour — par- ticularly when he had been guilty of extreme carelessness with "di- sastrous" results before and put on notice that such misconduct wasn't acceptable. The arbitrator found that Cro- zier's misconduct was serious and went to the heart of his employ- ment — his job was to test and ad- just the valves and lines and then send wine into the receiving tank. He simply failed to carry out the fundamental duties of his job, the arbitrator said. The arbitrator also noted that while it may have been a busy time, Crozier only had one work order to fulfill at the time of the incident. There was no reason for him to fail to check that things were properly working. If he had followed proper procedure, he would have avoided or at least reduced the loss. In addition, the arbitrator not- ed that such a loss of wine down the drain had only happened twice in Mission Hill's history — both times it was Crozier's fault and the incidents occurred with- in 18 months of each other. The grievance was dismissed. Reference: Mission Hill Winery and Service Employees International Union Local 2, Branch Local 300. Arbitrator — Nicholas Glass. Israel Chafetz for employer. E. Murphy Fries for employee. Dec. 30, 2019. had otherwise been in the collec- tive agreement since 1991. The collective agreement also stipulated that "where employ- ees' working schedules vary from week to week, working schedules shall be posted no later than the Wednesday preceding the work week concerned." Each of the elementary and high school buildings operated by the school board, plus an of- fice building, had a senior facility technician who was responsible for the maintenance of the prop- erty and a team of caretakers and facility technicians. Each senior technician determined their start time based on the needs of the particular school, which was af- fected by factors such as the size of the school, arrival time of staff and students, the time needed for cleaning, and the time of the year — for example, the start time could be earlier if snow needed to be plowed in winter or lawns mowed on hot days in the sum- mer. Each senior technician ad- vised their manager of the chosen start time and would set the start time for other staff at the school. On Dec. 14, 2015, one of the property managers sent a memo to all senior facility technicians that set out specific start times. The memo stated that those at high schools were to work from 7:30 a.m. to 4:30 p.m. with a one- hour lunch and those at elemen- tary schools must work from 6:30 a.m. to 3:30 p.m. Any changes re- quired approval from managers. The union filed a grievance claiming that the wording of the collective agreement allowed se- nior facility technicians to choose their start times and past practice had been to do so. The union ac- cepted that employers had the authority to set start times for employees where there was no specific collective agreement lan- guage on the subject, but claimed this agreement addressed the is- sue. Start times for other positions were set out in the agreement, but only the three-hour window for senior facility technicians, which indicated an intention to allow flexibility, the union argued. The arbitration panel found that the collective agreement's reference to the start time win- dow was a stipulation that start time must fall between 6 a.m. and 9 a.m. but not a restriction on the school board's ability to set specif- ic start times. Instead, it provided flexibility to set start times, the panel said. "The absence of a specified start time in [the collective agree- ment] leads to a conclusion that the parties intend some flexibility in starting time for [senior facil- ity technicians]," said the panel. "It does not lead to a conclusion that the provision was intended to give [senior facility technicians] the discretion to choose their own start times or erode the right of the employer to determine a start time for its employees." The panel also noted that there was no requirement for consulta- tion with the union in setting start times, only if there was a change outside of the set window. The panel determined that the school board was allowed under the collective agreement to set specific start times for senior fa- cility technicians, as long as those start times fell between 6 a.m. and 9 a.m. as prescribed in the collec- tive agreement. The grievance was dismissed. Reference: Board of Education of Regina School Division No. 4 and CUPE, Local 650 (Flexible Start Times). Allen Ponak — chair. Eileen Libby for employer. Gary Bainbridge for employee. April 17, 2019. 2019 CarswellSask 197 Limits placed on when employees could be scheduled < Start-time pg. 1 < B.C. winery pg. 1 $160,000 negligence enough for just-cause dismissal "The absence of a specified start time leads to a conclusion that the parties intend some flexibility in starting time."

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