Canadian Labour Reporter

October 5, 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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October 5, 2020 eight tests in the following 12 months." A counsellor also rec- ommended random testing and complete abstention from alco- hol. The Edmonton Police Service (EPS) developed a return-to- work agreement in December 2019 that included unannounced urine testing for 24 months. The worker felt he was being punished and that he could have a drink while off duty, but he understood he had to maintain complete abstinence for the period of the agreement. In February 2020, the worker was told that he would be tested with Soberlink — a hand-held breathalyzer device that uses fa- cial recognition and GPS location that it transmits to a system in the U.S. — three times a day, along with urine testing after the week- end and a blood test after holi- days. The worker was concerned about his privacy but he signed the agreement because he had been told that if he didn't he could be disciplined. In April, the EPS added an eve- ning test. The union filed a griev- ance and the EPS adjusted the return-to-work plan so it elimi- nated the urine and blood tests and restricted testing to work hours. However, the union main- tained the testing was "unlawful and unreasonable" and different from the recommendations of the rehabilitation facility and coun- sellor. The EPS countered that the worker's job was "highly safety- sensitive given that his full opera- tional status allows and requires him to carry a gun, drive a vehicle, and intervene in emergency situ- ations which may involve dealings with violent individuals." The arbitrator agreed that there was little room for error in the worker's occupation, noting that "policing requires unim- paired cognitive functioning, and even a split second of impairment can be disastrous." However, the arbitrator noted that there had to be a reasonable balance between the employer's need for safety and the employee's privacy rights. In this case, "the nature and inten- sity of the testing protocol repre- sented a significant infringement of the [worker's] privacy rights in at least two respects — the intru- siveness of the testing and the use of the information." The evidence indicated that Soberlink stored and released the personal information of the worker to a location the EPS did not properly identify or try to lim- it. In addition, it had been estab- lished that tests involving bodily fluids could only be carried out in "exceptional circumstances" where there was evidence of a widespread problem or threat im- pairment in the workplace, said the arbitrator. The arbitrator found that the EPS didn't assess the workplace risk and was focused on guar- anteeing the worker's sobriety rather than avoiding impairment at work — which didn't "engage in the balancing exercise necessary to support the mandatory testing imposed in the return-to-work agreement." As a result, the EPS and the union were directed to negotiate a new agreement keep- ing in mind the need for monitor- ing for at least two years. The EPS was also ordered to pay the worker $7,500 in dam- ages for the breach of his privacy rights. Reference: EPA and Edmonton Police Services. Phyllis Smith — arbitrator. Dana Christianson for employer. Dan Scott for employee. Aug. 25, 2020. 2020 CarswellAlta 1526 'Intrusive' measure focused on maintaining sobriety Bonus for employees who worked on short notice the employee was scheduled to be off and has received less than 72 hours' notice." In addition to the premium pay, employees in such circumstances were entitled to a full day off later in lieu of the holi- day. Employees given 72 or more hours' notice to work on a holiday received time and one-half along with a day off later. The care facility also employed casual and part-time employees whose purpose was "to relieve employees in regular or tempo- rary positions who are on ap- proved leaves such as vacation, bereavement, sick leave, etc., or to respond to workload demands or to fill temporary positions." The collective agreement stated that these employees "may work with- out advance notice and there shall be no financial penalty on the em- ployer." Part-time and casual employ- ees signed availability agreements that indicated their availability for "relief shifts" — "deficiencies in the schedule after posting" caused by short-notice absences of employ- ees originally scheduled to work. Part-time employees received time off according to mutual agreement between them and the facility, but otherwise could be as- signed any shifts. On Dec. 26, 2018, two part-time continuing care assistants were requested to work relief shifts for the Boxing Day holiday after em- ployees who had been scheduled were absent. Due to the short no- tice of the absences, the employees had less than 72 hours' notice but were asked if they wanted to work the shifts according to the list of available part-time employees. Both had indicated that they were available to work on Boxing Day and received time and one-half for the shift. On Feb. 18, 2019, two other part-time employees — a food- service worker and another con- tinuing-care assistant — were asked to fill in on relief shifts for the Family Day holiday as they had indicated their availability for the day on the part-time availabil- ity agreement. As with the others, they received less than 72 hours' notice due to the nature of the shift but were paid time and one-half. The union filed a grievance claiming that all four employees should have received double-time for working the holidays as per the collective agreement's holiday premium-pay provision. The care facility disagreed, arguing that the holiday premium-pay provision didn't apply to casual and part- time employees because the col- lective agreement stated that they could work relief shifts without advance notice or penalty to the employer. The arbitrator found that some of the conditions for holi- day premium pay were met — they were established shifts on recognized holidays for which the employees received less than 72 hours' notice. However, one of the conditions was for the em- ployee to be required to work. The care facility needed employ- ees to fill in for established shifts on the holidays that had become vacant, but no particular em- ployee was required to fill the shifts. The part-time employees were asked if they could work the relief shifts and the employees, who had indicated their avail- ability and willingness to work the shifts, consented. Had they refused, there would have been no consequences and the facil- ity would have proceeded to the next available employee on the list, said the arbitrator. Since the part-time employees were not required to work the holi- day relief shifts and were willing to work them, the holiday premium- pay provision did not apply, said the arbitrator in dismissing the grievance. Reference: CUPE, Local 5248 and Meadows Home for Special Care. Augustus Richardson — arbitrator. Janet McIntosh for employer. Carl Crouseq for employee. Sept. 9, 2020. 2020 CarswellNS 543

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