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Issue link: https://digital.hrreporter.com/i/1353679
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