Canadian Labour Reporter

February 22, 2021

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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LABOUR FORCE NUMBERS him for cause without investiga- tion. On Dec. 2, Ouellette called his supervisor to say he would be ab- sent the next day because his truck was getting repaired. The supervi- sor accepted the absence as Ouel- lette had called in advance as per company policy. The next day, Ouellette called again to say the repairs were con- tinuing and he wouldn't be able to attend work on Dec. 4. He called a third time on Dec. 4, saying that the truck still wasn't fixed, so he would be absent for a third con- secutive day on Dec. 5. Another supervisor called Ouellette on Dec. 5 to ask him why he had been absent without leave for three days. Ouellette re- plied that his truck had been in the shop but the supervisor said he needed to be at work "no mat- ter what it took, bus, rent a car, or cab." ONTC decided to terminate Ouellette's employment for cause, as he had completed 103 days of work and was still a probationary employee. The union contested the ter- mination, arguing that Ouellette wasn't a probationary employee and deserved an investigation before dismissal. It said that the collective agreement defined a workweek as 40 hours consist- ing of five eight-hour days, which meant that a workday was an eight-hour period of time. There- fore, the probationary period con- stituted 960 hours worked. Ouel- lette had worked some extra hours that brought his total to 984, sur- passing the probationary period threshold, the union said, adding that the collective agreement used the term "working" days, not "cal- endar" days. The union also argued that ONTC didn't have grounds for termination, as Ouellette had called his supervisor before each of the days he was absent and was never told his absence wasn't ap- proved. The arbitrator found that the collective agreement's word- ing was "working days' service," meaning it referred to the service — not hours — belonging to 120 days by using the possessive apos- trophe. As a result, Ouellette was still on probation when he was dismissed, said the arbitrator. The arbitrator noted that the union argued this could create a situation where someone could work one hour per day for 120 days and pass their probation while someone who worked 10 hours per day for 119 days would still be probationary, but found that this wasn't necessarily unfair because some employees might choose to work varied hours. The arbitrator agreed that the worker hadn't been told he didn't have permission to be absent on the first two days, but on the third day a supervisor told him that he needed to be at work. However, termination of a probationary em- ployee should still be related to the employee's suitability for the job and there was no evidence Ouel- lette's reason for being absent wasn't true or that ONTC looked into it. The arbitrator determined that Ouellette didn't willfully breach the attendance policy. There was no evidence to indicate that he was denied leave for the first two days, nor any evidence to indicate he was unsafe or unreliable, said the arbitrator. "Employers are expected to demonstrate that an employee has a fair opportunity to demon- strate suitability," said the arbitra- tor in ordering ONTC to reinstate Ouellette to his probationary em- ployment. "ONTC is therefore required to clearly communicate what standard it expects, record deficiencies it observes and es- tablish that the standards used are reasonable." Reference: Ontario Northland Transportation Commission and Teamsters Canada Rail Conference. Tom Hodges — arbitrator. Geoff Ryans for employer. David Brown for employee. Nov. 6, 2020. 2020 CarswellOnt 17248 vehicle operator office suspended his permit for five days for vio- lating airport traffic directives, which stipulated that "aircraft al- ways have the right-of-way." The directives also stated that "failure to yield to aircraft or an aircraft's marshalling crew" was a major infraction and a violation of the federal Aeronautics Act. Bodnar appealed the suspen- sion, arguing that he had received a call about a battery acid spill which he had prioritized as a me- dium-level risk. He pointed out that the directives allowed ASOs and emergency services to "devi- ate from the airport traffic direc- tives in order to carry out their duties and responsibilities," but his appeal was unsuccessful. On April 22, GTAA received another complaint about Bodnar driving a safety vehicle at exces- sive speeds with no lights or siren near two active passenger buses. Bodnar denied he had been driv- ing too fast and reiterated his right to deviate from directives for emergency purposes. GTAA determined that the ve- hicle had reached 92.6 kilometres per hour in an area with a speed limit of 40 kilometres per hour and had driven across two live air- craft taxi lanes. The permit office permanently revoked Bodnar's permit and GTAA terminated Bodnar's employment for cause on June 27, based on the two in- cidents and his lack of forthright- ness during its investigations. The union grieved the termi- nation, arguing that Bodnar was honest in acknowledging his con- duct and GTAA didn't give him a chance to provide a proper expla- nation. The arbitrator found that Bod- nar knew he was being investi- gated for the first incident and had an opportunity to ask GTAA to follow up on the evidence of his speeding. Bodnar acknowledged operating a vehicle outside of the directives but claimed he could because he was an ASO. Howev- er, he didn't activate his emergen- cy lights or siren in either incident — undermining the ASO exclu- sion in emergency situations. In the second incident, Bod- nar "chose to repeat violations of the directives and continued to justify it based on his inter- pretation of [the directive] that he has discretion not to comply with posted speeds and proce- dures while driving airside," said the arbitrator. "He increased the severity of his own situation of the rules by refusing to answer questions about the report on the basis that he was using his discretion." The arbitrator noted that MTAA had an obligation to pro- vide a safe workplace and while ASOs had a right to safely devi- ate from airport traffic directives, they didn't have a "green light" to breach the rights of others to a safe workplace. The arbitrator determined that MTAA had just cause to termi- nate Bodnar's employment. "This was not a case of an iso- lated human error, but rather a serious and deliberate breach by an ASO," said the arbitrator. "His actions of deliberately ignoring the directives after the [initial] complaint can only be viewed as an act of defiance which has se- verely contributed to the loss of trust of the employer and I find no compelling reason to mitigate the penalty." Reference: Greater Toronto Airport Authority and Unifor, Local 2002. Tom Hodge — arbitrator. Paul Shiels, Mario DiNardo for employee. Oct. 30, 2020. 2020 CarswellOnt 17247 Worker committed 'serious and deliberate breach' Ontario employer didn't have to probe misconduct

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