Canadian Labour Reporter

In late August, the worker was approved to take Aug. 28 and Aug. 29 off work due to a death in his family. He was supposed to work on Aug. 31 but he called in sick. HMP management soon learned that the worker had posted several photos and updates on Facebook showing that he was playing in a soccer tournament that day. The worker explained that playing soccer helped to clear his mind and he thought it would help "with everything that was going on" — in addition to the death, he had split with his girlfriend and was sharing custody of his daugh- ter. HMP asked if the worker had been diagnosed with a mental ill- ness, but the worker said he was just going through "a rough time." HMP decided to extend the worker's probationary period un- til Feb. 18, 2015. In early February 2015, a man- ager saw photos of the soccer tournament on the worker's Twit- ter account as well as tweets dis- cussing one of the inmates at the prison. The worker also tweeted articles critical of the prisons and some appeared to have been post- ed during work hours. Two days before the end of the worker's probationary period, HMP informed him that he was being investigated for using his personal cellphone at work and inappropriate commentary on social media relating to persons in custody. The worker denied using his cellphone in the prison since man- agement had cracked down on the practice, but he didn't deny play- ing in the soccer tournament or posting the tweets. On Feb. 17 — the day before the worker's probationary period ended — HMP terminated his employment for the cellphone infraction, the social media com- mentary, and "a continued failure to comply with employer policies on proper dress and deportment." HMP said that all of these indicat- ed that the worker wasn't suitable for the position of correctional of- ficer. The union challenged the dis- missal, claiming the worker wasn't warned about his breach of policy on deportment or dress code. It also claimed the worker hadn't been trained on the cellphone ban and there were mitigating circum- stances when he called in sick and played soccer. The arbitrator noted that the worker admitted that he had played in the soccer tournament and didn't comment on his tweets. In addition, while he denied using his cellphone after management cracked down on it, he didn't deny using it before the crackdown, al- though it was still against policy. As for his dress code violations, these had been raised in his evalu- ation but he didn't improve, said the arbitrator, noting that the worker had ample opportunity to dispute the allegations against him. The arbitrator found that the grounds provided by HMP were "of sufficient severity for the employer to conclude that the [worker] was unsuitable to be a correctional officer" and upheld the dismissal. Reference: NAPE and Newfoundland and Labrador, Human Resources Secretariat. W. John Clarke — arbitrator. Bernadette Cole-Gendron, Erin Delaney for employer. Frank Pittman, Christina Kennedy for employee. May 19, 2020. 2020 CarswellNfld 222 Dismissal justified for probationary worker: Arbitrator No full vacation allowed for worker on disability leave employee when vacation time was taken the following year to ensure the employee received their full pay while away. The col- lective agreement stipulated that if the vacation pay earned by an employee during a vacation year was less than what was needed to cover his regular wages during va- cation leave for the following year, CF would supplement it as neces- sary. Jeff Winchester worked at the Toronto Eaton Centre. By June 1, 2017, his years of service — he was hired in October 1986 — en- titled him to six weeks of annual vacation leave. On May 28, 2017, Winchester went on STD leave in accordance with the collective agreement. In September, he transitioned to LTD benefits. CF's STD policy allowed em- ployees to accrue vacation at the same rate as if they were work- ing while receiving STD benefits. However, the LTD policy stipulat- ed that employees did not accrue vacation while on LTD. Every May 31, employees on LTD with any unused vacation would re- ceive a payout. Both policies were incorporated into the collective agreement. While he was on disability leave in the 2017- 2018 year, Win- chester didn't use any vacation leave. CF carried over the vaca- tion pay he had accrued to fund his vacation leave at full pay for the 2018-2019 year. Winchester returned to work on Aug. 13, 2018. Three months later, the union filed a griev- ance claiming CF should pay out Winchester's accrued vaca- tion pay earned in the 2016-2017 year that he hadn't used while on disability leave and provide a fresh entitlement of six weeks' vacation for 2018-2019, with CF covering any vacation pay short- fall from his disability leave as required by the collective agree- ment. The arbitrator noted that vaca- tion entitlement in the collective agreement was based on the prior year's accrual for both vacation time and vacation pay. This was consistent with the concept that time off is earned over the course of the year and therefore could be pro-rated based on how much the employee worked. The arbitrator then found that the collective agreement drew a distinction between vacation eligibility and entitlement, as it set vacation pay to be a certain percentage of all earnings paid for each week of vacation the em- ployee was eligible to take. As a result, Winchester's six- week vacation entitlement would have to accrue over the course of the previous year for him to be able to take a full six weeks of va- cation in 2018-2019, said the arbi- trator. "The distinction drawn is therefore between the quan- tum of the entitlement, which is based on years of service, and the eligibility to take that entitle- ment, which is based on accrual in the prior year," said the arbitra- tor. "The concept of eligibility, superimposed on the concept of 'entitlement' is consistent with the notion that both vacation time and vacation pay 'accrue,' and are not allocated at a single point in time based on years of service alone." The arbitrator also found that the LTD policy — which was in- corporated into the collective agreement — was clear that vaca- tion did not accrue while an em- ployee was on LTD. The arbitrator determined that CF should have paid out Winchester's vacation pay en- titlement for the time he was off rather than carrying it forward, but only for the four months he was on STD — two weeks instead of six weeks. Reference: Cadillac Fairview and Unifor, Local 2003E. Eli Gedalof — arbitrator. Trevor Lawson for employer. Jesse Kugler for employee. Sept. 1, 2020. 2020 CarswellOnt 12350

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