Canadian Labour Reporter

December 14, 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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hours being the norm. The worker was trained dur- ing her first three days of work, including shadowing another front desk employee, perform- ing front desk duties with a training employee, and then the training employee shadowing her. At the end of her third shift, the worker advised the train- ing employee that she wasn't yet comfortable working on her own, which she was scheduled to do the next day. However, she proceeded to work the shift, which was on April 27. During the shift, the worker slipped and fell on a wet floor in the hotel's kitchen. She could barely walk afterwards, but she finished the last hour of her shift because there was no one to cover for her. The worker was granted workers' compensation ben- efits and was off work for three weeks. She returned on May 17 with a functional abilities form setting out restrictions such as no extended standing, walking, or lifting. She worked her full shift, though it was painful. The worker was scheduled to work six eight-hour shifts over an eight-day period from May 19 to 26, but she told the gen- eral manager that she could only work three shifts per week due to her injuries. However, the hotel was understaffed and the worker ended up working all of the shifts. The worker worked five more eight-hour shifts between May 31 and June 9, experienc- ing significant pain and lim- ited mobility. On June 13, the worker called in to advise that she couldn't work that day or the next because of continuing pain, but she was told there was no one to cover her shift the next day. She reported for work on June 14 and suffered from "ago- nizing pain" as a result. The worker received a work- ers' compensation report indi- cating physical restrictions and a limit of four-hour shifts on June 15. The hotel scheduled her for a four-hour shift on June 18, but then scheduled her for a full shift two days later. On June 19, the training em- ployee called to ask about a booking error while the general manager and owner listened in. The worker denied knowing about it, but the general man- ager believed that the worker was lying. About 30 minutes later, the general manager called the worker and said her June 20 shift was going to be covered by someone else. When the worker asked what it meant, she re- plied, "This is not working out" and said there were complaints about her. The worker's employ- ment was terminated. Though the worker was pro- bationary, the union grieved the dismissal, arguing that the worker's injury was a factor in her dismissal, making it dis- criminatory. The arbitration board found that the hotel had little interest in accommodating the worker, as it scheduled her for full shifts after she was injured and had restrictions. It terminated the worker the day after the need for an accommodation process was confirmed in a "coordinated ef- fort to establish, over the phone, something akin to just cause or a culminating incident," said the board. The board determined that the hotel discriminated against the worker and made no effort to accommodate her disability. The hotel was ordered to pay the worker $20,000 for its "egre- gious breach of [its] duty to ac- commodate, which inflicted sig- nificant emotional pain on the [worker]." Reference: Copper River Inn and UFCW, Local 175. Dana Randall — chair. Mike Maher for employer. Jane Mulkewich, Avo Topjian for employee. Nov. 9, 2020. 2020 CarswellOnt 16822 on layoff or an unpaid leave of ab- sence did not receive holiday pay. For an employee receiving short- term disability, long-term dis- ability, or workers' compensation benefits (WCB), "no additional payment shall be due for a named holiday which occurs during a pe- riod" while the employee was re- ceiving such benefits. Irina Tarnavsky was a medi- cal radiation technologist at the Sturgeon Community Hospital in St. Albert, Alta. She was injured at work in March 2018 and received WCB. Tarnavsky was cleared to return to work for four-hour shifts be- ginning on Aug. 15 and six-hour shifts on Aug. 27. A normal shift was 7.75 hours, so initially AHS paid for four hours with WCB covering the rest. This changed to AHS paying the worker for six hours with benefits covering the remaining 1.75 hours of her nor- mal pay. Tarnavsky worked her sched- uled shift on Sept. 2 and then worked a six-hour shift on Sept. 3, which was Labour Day, and was paid time and one-half. The day after, she took an approved vaca- tion day. However, the HSAA filed a grievance arguing that in addi- tion to the time and one-half pay for working on Labour Day, Tar- navsky should have received an- other day off or one day's pay. AHS disagreed, saying that Tar- navsky was still receiving WCB because she was only working part-time as part of her graduated return to work. As a result, she was still in the period for which she was to receive "no additional payment" under the collective agreement. The arbitrator found that it was clear that the intention of the par- ties in the collective agreement was to provide full-time employ- ees with a paid day off for named holidays. Though Tarnavsky wasn't working full shifts as part of her graduated return to work, she was still a full-time employee, said the arbitrator. "The length of the shifts which she was working is irrelevant to her entitlement to named holiday pay for Labour Day 2018," said the arbitrator. "There is no provision in the collective agreement that converts the status of a full-time employee on WCB working re- duced hours in a return-to-work program to a part-time employee." The arbitrator also found that the alternative options to getting a named holiday off provided for in the agreement were not an "ad- ditional payment," but rather were part of the holiday itself. Under AHS's interpretation, an em- ployee who returned to full-time hours but in a lower-paid classifi- cation and received top-up WCB would never be entitled to a paid day off for a named holiday, said the arbitrator. The arbitrator determined that Tarnavsky was entitled to a paid day off as she met the require- ments in the collective agreement — she worked the day before La- bour Day, worked on Labour Day for time and one-half, had an ap- proved vacation day the day after, and was a full-time employee. AHS was ordered to provide Tar- navsky with six paid hours off or six hours' pay. Reference: Alberta Health Services and HSA. D.P. Jones — arbitrator. Lynn Michelle Angotti for employer. Sean Hayes for employee. Nov. 6, 2020. 2020 CarswellAlta 2205 Paid days not considered prohibited 'additional payments' Hotel didn't assist with short shifts, physical restrictions

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