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Issue link: https://digital.hrreporter.com/i/1358491
who went on maternity leave and
were eligible for employment
insurance (EI) benefits with a
top-up of their EI payments that
would bring them up to 95 per
cent of their regular salary for 17
weeks. This involved payment
of 95 per cent of the employee's
salary during the two-week wait-
ing period for EI benefits fol-
lowed by payments equal to the
difference of 95 per cent of the
employee's salary and "the gross
employment insurance benefit
for an additional 15 weeks."
In February 2018, a staff law-
yer with LAS at its Prince Albert,
Sask., office went on maternity
leave. She had been with LAS for
12 years and — in addition to her
full-time role with LAS — she
was an elected city councillor.
She would continue to receive
her city councillor salary while
on maternity leave, so she asked
about her eligibility for top-up
payments since she had outside
income.
The lawyer's EI benefit rate
would have been $547 per week
based on her LAS salary but her
city councillor salary reduced
her EI payments to $40 per week.
LAS paid her top-up based on
the amount of EI payments she
would have received based only
on her LAS salary, before it was
reduced due to her city council-
lor income.
The union filed a grievance,
arguing that the collective agree-
ment's wording entitled the em-
ployee to a top-up based on the
amount she actually received
from EI. The union pointed out
that the plain language of the
collective agreement stated
that the lawyer was entitled to a
"supplementary payment from
the employer based on her gross
payment from EI, not the pay-
ment she would have received
from EI if not for her income as
a city councillor. As a result, the
top-up payment should cover the
difference between the $40-per-
week EI payment she actually
received — her gross EI benefits
payment — and 95 per cent of
her weekly salary, said the union.
The employer argued that for
the purposes of the collective
agreement, "the gross EI benefit"
meant "prior to any deductions
from benefits" including earned
income.
The arbitrator noted that
"gross" wasn't defined elsewhere
in the collective agreement, nor
was "gross EI benefit" defined in
the Employment Insurance Act
or the federal government's on-
line resources for EI. Absent any
definition, the arbitrator relied
on the meaning that it referred to
an amount of money prior to any
deductions or losses — meaning
that the lawyer's gross EI benefit
was the amount she received be-
fore her city councillor earnings
were deducted, or $547. The $40
she received from EI after the de-
duction from her other earnings
was her net EI benefit, said the
arbitrator.
The arbitrator also found that
the employer's position was
backed up by the fact that an-
other provision in the collective
agreement for compassionate
care leave provided a top-up of
the difference between "pay-
ments received by the employee
from employment insurance"
and the employee's regular sal-
ary. This more specific language
indicated the intent of the par-
ties and what "gross EI benefit"
meant, the arbitrator said.
The arbitrator determined
that the maternity leave top-up
in the collective agreement en-
titled the lawyer to receive pay-
ments from LAS equal to the
different between her EI benefits
entitlement of $547 based only
on her LAS salary, before the
benefit was deducted to account
for her outside earnings. The
grievance was dismissed.
Reference: Legal Aid Saskatchewan and CUPE, Local 1949. Allen Ponak — arbitrator. Amy Gibson for employer. Jake
Zuk for union. Feb. 16, 2021. 2021 CarswellSask 89
CPR had a mobile communica-
tion policy that prohibited un-
authorized personal use of MiFi
devices.
Miller went on a vacation to
Cuba with his family in January
2020. The following month, CPR
received a $30,000 data usage
bill on its company cellphone ac-
count. CPR traced the bill to Mill-
er's MiFi device, which had used
more than 30 GB of international
data and 150 GB of domestic data
during the January billing period
— about 36 times more than the
average monthly employee usage
of 5 GB.
When CPR brought the bill to
Miller's attention, he acknowl-
edged that he had taken the de-
vice on vacation. He explained
that before the vacation, he had
connected two tablet comput-
ers at home to his MiFi one night
when the power and Internet
were out. He said his two young
daughters were scared, so he used
the MiFi to logon to the Internet
so they could watch a movie that
would help calm them down.
When the power came back on,
the tablets reconnected to his
house's wireless and he later went
to work with his MiFi device.
However, he suggested that
when he brought his MiFi device
and the tablets on vacation, the
tablets "must have latched onto
my electronic devices" because
the hotel had a weaker wireless
signal.
Miller acknowledged that his
actions violated the mobile device
policy, saying that he "owned this
whole thing and I am willing to
pay." CPR said it had negotiated
the amount down to $15,000 and
Miller asked: "Who do I write the
cheque to?"
On March 29, CPR suspended
Miller for 20 days without pay
for violating the mobile com-
munication policy and mobile
communications procedures. It
also advised Miller that he was
responsible for "the full payment
of the mobility overcharges that
you incurred," which it indicated
was to be decided due to ongoing
negotiations with the service pro-
vider. It was eventually able to ne-
gotiate the amount down to $750.
The union grieved the dis-
missal, arguing that the suspen-
sion was excessive for intentional
misconduct by an employee who
had a long record of service with
no discipline for 24 years.
A federal arbitrator found
that Miller's explanation of the
data charges wasn't credible.
Since the MiFi device's batter-
ies had to be recharged after six
hours, Miller would have had
to recharge it while he was in
Cuba to rack up more than 180
GB of data, given that only 1 GB
provided two hours of video
streaming or 12 hours of Internet
browsing.
The arbitrator noted that it
was possible that Miller had in-
advertently taken the MiFi device
with him to Cuba, but once there
he was aware — or reasonably
should have been aware — that it
was being used, given the period
of time during which it was used
and how much data it down-
loaded. Miller was culpable and
responsible for the misappropria-
tion of CPR's MiFi for his personal
use, said the arbitrator in uphold-
ing the suspension.
Reference: Canadian Pacific Railway and IBEW. Richard Hornung — arbitrator. Denis Ellickson for employee. Feb.
18, 2021. 2021 CarswellNat 394
Twenty-day suspension for $30,000 cellphone bill
Agreement's intention was to augment pay disparity