Canadian Labour Reporter

March 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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involved working for 10 months during the school year and being laid off for July and August, dur- ing which time she received em- ployment insurance (EI) benefits. She returned to her position each September. The collective agreement be- tween the school district and the worker's union included bereave- ment leave of five working days "in the event of death" of a mem- ber of an employee's immediate family. On Aug. 6, 2019, the worker's father passed away. The worker was his oldest daughter and took on much of the responsibility for planning a memorial service and helping her mother. A celebration of life for the worker's father was held on Aug. 24. It was also decided to have a ceremony with the family in mid- September during which they would spread his ashes at a mean- ingful location. The worker was on layoff at the time of her father's death and the celebration of life, but she was scheduled to be back at work in September. She emailed the school district's HR manager on Sept. 19 to request her five be- reavement days in September for the ash-spreading ceremony. The HR manager initially allowed the request. However, a few days later, the HR manager emailed her back to say the bereavement leave request was denied, as "you were not scheduled to work and thus the leave provision wouldn't apply." The worker asked why spreading ashes wouldn't fall under bereave- ment, to which she was told it would be considered leave with- out pay as it wasn't immediately following her father's death, as per the collective agreement. The worker took 14 days of un- paid leave in September and the union filed a grievance, arguing that there was nothing in the col- lective agreement requiring the death to be during active employ- ment and the worker's reason for requesting leave in September was "consistent with the purpose of bereavement leave." The arbitrator noted that there wasn't any language in the col- lective agreement specific to the entitlement of 10-month em- ployees to bereavement leave, so the worker's entitlement was the same as any employee. In ad- dition, the bereavement leave clause didn't have any restrictive or qualifying conditions regard- ing the timing of the leave — the language used was "in the event of death," which didn't clearly direct when the employee may be ab- sent, said the arbitrator. The arbitrator found that the jurisprudence established that a funeral could consist of one or more observances and, given the "varying habits, customs and tra- ditions in our pluralistic society," should be given a broad interpre- tation. As a result, the arbitra- tor found that the ash-spreading should be considered an activity reasonably related to the death of the worker's father. "Absent restrictive language directing a different outcome, an employee may claim bereave- ment leave for a period which does not follow immediately upon the death of a recognized family member," said the arbitra- tor. "Nor must an employee have been actively employed at the time of the family member's death unless that is stipulated by the ap- plicable clause." The arbitrator upheld the grievance, determining that the worker was entitled to the five paid days of bereavement leave she requested in September 2019. Reference: British Columbia Public School Employers' Assn./School District No. 27 (Cariboo-Chilcotin) and IUOE, Local 959. John Hall —arbitrator. Ingrid Otto for employer. Sephra Smith, John MacTavish for employee. Jan. 13, 2021. 2021 CarswellBC 254 7 a.m. One hour later, the market manager convened the daily safe- ty meeting and noticed that the worker's eyes were bloodshot and he appeared disheveled. After the meeting, she asked another driver if the worker smelled of alcohol and the driver replied in the affirmative, also mentioning that the worker had told coworkers that he had "shut down the local pub the night be- fore and walked home." The manager informed the HR department, which advised her to obtain a blood-alcohol test. The manager told the worker that she had reasonable grounds to believe he was in violation of the fit-for-duty policy and the worker explained that he had consumed five or six beers the night before but was in bed by 10 p.m. He claimed to have woken up feel- ing normal and said that if he had felt intoxicated or hungover, he would have called in sick. The contractor who performed the testing was two hours away, so the manager requested assistance from the police. The worker vol- untarily submitted a breath sam- ple at around 9:15 a.m. and his blood-alcohol count was 43 mg per 100 ml of blood — more than double the policy's limit of 20 mg for employees in safety-sensitive jobs. It also exceeded the thresh- old of 40 mg for non-safety-sensi- tive positions. The contractor administered another test at 10:44 a.m. that showed the worker's blood al- cohol at 18 mg. The worker was placed on paid suspension pend- ing an investigation. Superior invited the worker to provide a statement about the incident, but the worker failed to do so. On Sept. 25, Superior termi- nated the worker's employment for a "violation of the company's fit-for-duty policy and other dis- ciplinary events over the last 24 months." The union argued that the worker honestly but mistak- enly believed he went to work with a blood-alcohol level below the policy's threshold and he co- operated with the investigation, so dismissal was excessive. The arbitrator found that the worker knew or should have known that there was a risk that his blood-alcohol level was too high when he went to work. Since the level dropped by 25 mg in the 90 minutes between the first and second test, it was reasonable to assume that the worker had had enough drinks to put his blood-alcohol level at about 150 mg when he went to bed at 10 p.m. This was support- ed by the fact that others no- ticed that he smelled of alcohol, which also provided reasonable cause to conduct the test, said the arbitrator. The arbitrator found that the worker committed a "seri- ous employment offence given the safety-sensitive nature of his job and the associated risk of harm to others." Although it wasn't premediated, the worker knew he needed to monitor his alcohol consumption and "acted with reckless disregard." In ad- dition, the worker had previous discipline for safety infractions including a final warning, said the arbitrator in upholding the dismissal. Reference: Superior Propane and TC, Local 213. Ken Saunders — arbitrator. Michael Hancock, Michelle McKinnon for employer. Bryan Savage, Shaw Zandnia for employee. Dec. 14, 2020. 2020 CarswellBC 3513 Worker aware of threshold for safety-sensitive job Ash-spreading reasonably related to death: Arbitrator

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