Canadian Labour Reporter

The collective agreement be- tween IBEW Local 424 and its own union recognized its right to dismiss employees for just cause only and required Local 424 to provide notice of termination or pay in lieu thereof based on a ta- ble set out in the agreement. The collective agreement also stated that "some employees may also be entitled to a greater no- tice period by the courts than the minimum standards legislated by the code." On Feb. 21, 2020, IBEW in- formed both workers that their positions in their respective branch officers were being elimi- nated. IBEW offered them both transfers to its head office in Ed- monton. The Fort McMurray-based worker didn't respond to the offer because IBEW didn't offer a relo- cation allowance. In addition, her family and friends were all in Fort McMurray, more than 400 kilo- metres from Edmonton. The Cal- gary-based worker accepted the transfer offer, but IBEW told her it was no longer available. IBEW then terminated the employ- ment of both workers, providing eight weeks' pay to each of them. Shortly after their terminations, the COVID-19 pandemic hit and neither was able to find work. The worker's union filed a grievance, claiming that both workers were terminated with- out notice or compensation in lieu of notice as required by the collective agreement. It argued that the collective agreement contemplated a greater notice period than the employment standards minimums, which should be interpreted as com- mon law notice. IBEW, Local 424 argued that the collective agreement didn't al- low it to dismiss employees with- out just cause. This entitlement for employees to be free from the threat of dismissal was "incom- patible with the common law principle of reasonable notice," which applied in cases of dis- missal without just cause, it said. It also argued that neither worker made much of an effort to miti- gate their losses by looking for al- ternative employment. The arbitrator noted that courts and arbitrators have con- sidered whether a collective agreement that permits dismissal for just cause only lines up with the common law reasonable no- tice and "the universal answer is no." "[W]hile meaning must be given to every word and provi- sion in the collective agreement on the theory that the parties did not mean to include redundant provisions in their agreement, the interpretation advanced by [the workers' union] would re- quire disregarding core principles negotiated into this contract and which would eviscerate the pro- tection given generally to work- ers not to be dismissed without cause," said the arbitrator. "As observed by the courts, you cannot have one without the other. This would expose senior employees to the risk of termina- tion simply to reduce the wage burden." The arbitrator also found that the collective agreement's state- ment that some employees may be entitled to additional notice did not recognize common law notice for all. The agreement identified several different em- ployee classifications, such as permanent full-time employees and part-time employees, who had different rights under layoff and seniority provisions. As a result, there were em- ployees who may have access to common law notice because they didn't have protections provided within the agreement, said the arbitrator, adding that this inter- pretation didn't displace the prin- ciple that "where the employer has no right to discharge without cause, there is no right to reason- able notice." The arbitrator dismissed the grievances, finding Local 424 was not required to pay compensation in lieu of reasonable notice. Reference: IBEW, Local 1007 and IBEW, Local 424. P.A. Smith — arbitrator. Adam Cembrowski for employer. Maryna Vysotski for employee. Jan. 6, 2021. 2021 CarswellAlta 10 staff office around midnight and it would stay closed for several hours. This concerned the execu- tive director because it is known that traumatized women will not knock on a closed door if they're unsure of what's behind it, so she was worried that the worker wasn't providing that support. Al- though Nelson House didn't have a written policy, it had been dis- cussed in training and meetings that the expectation was for doors to be kept open unless an employ- ee was with a client or on a confi- dential call. The executive director also learned that the worker had pre- viously received a written warn- ing and a two-day suspension for sleeping at work. The executive director also dis- covered that the office computer was active at the beginning of each shift and then inactive for several hours. She compared the worker's shifts to another overnight crisis shelter worker, who opened and closed doors all night — indicating that she was doing security checks and organizing — and spent more time on the computer. The worker said the door data wasn't accurate and she had coun- selled two residents on some of the dates in question. She said that she shut the office doors when she was working, but residents knew where she was. In addition, she said her colleague used the work computer for leisure activities while she used her own laptop. When told that keeping the doors closed was a safety risk, the worker replied that she could hear if something happened. She also said she closed the doors to keep herself safe, though she didn't ex- plain from what. There had been no incidents that had caused a safety concern. Nelson House dismissed the worker on July 24 for not perform- ing her duties, sleeping during her shift, and being dishonest about it. The arbitrator found that there was no direct evidence that the worker slept at work, only that she remained in the staff office with the doors closed for long periods of time. There was some movement and computer activity, which could have been her doing "the bare minimum required" but still fulfilling her duties, said the arbitrator. The arbitrator noted that Nel- son House could have checked other evidence to try to determine if the worker was sleeping — such as if the motion-sensor lights were off, any of the blinds were drawn, or if there were blankets removed from the donations room. Not checking for other evidence un- dermined the employer's claim of just cause, said the arbitrator. The arbitrator agreed that the worker knew she should have kept the office doors open and didn't have a good explanation as to why she didn't. This was a failure to live up to her job responsibilities and was worthy of discipline, the arbi- trator said. Nelson House was ordered to reinstate the worker with a two- week suspension in place of the dismissal. Reference: CUPE, Local 3851 and Nelson House of Ottawa Carleton. Andrew Tremayne — arbitrator. Nigel McKechnie, Colleen Hoey for employer. John McLuckie for employee. Dec. 18, 2020. 2020 CarswellOnt 19015 Employer had evidence worker neglected some duties Worker didn't relocate because no allowance offered

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