Canadian Labour Reporter

September 13, 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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kilograms, as well as sheds where the rolls are stacked. Due to the safety risk posed by the paper rolls and the clamp trucks, the shipping area had re- stricted access requiring authori- zation. On Dec. 5, 2019, a safety su- pervisor was tipped off that ship- ping department employees were smoking in a shelter they had put up near the lunchroom. Smok- ing was strictly prohibited, so the safety supervisor investigated along with two other employ- ees. They found that between the lunchroom building and the shed, someone had installed plywood walls to create a small, confined space partially sheltered from the elements, containing a light and a space heater connected to an ex- tension cord. The safety supervisor smelled an aroma that he believed includ- ed more than just cigarette smoke. He found two cans containing cig- arette butts and what appeared to be marijuana roaches. He took the cans back to his office, cut them open, and found more roaches in- side. The discovery raised serious safety concerns for Corner Brook Pulp and Paper. The company believed that there was a viola- tion of its drug and alcohol policy, so it demanded a swab drug test from all 21 employees on duty in the shipping department that day. A refusal would result in dis- cipline and would be considered evidence of a breach, so all the em- ployees complied. Following the test, all the em- ployees were sent back to work, as no signs of impairment were observed by management or the testing expert. The union filed a grievance, arguing that it constituted un- reasonable random testing and the company didn't have grounds as there were no signs of impair- ment. It also said that the drug and alcohol policy was unilaterally implemented without its input and wasn't part of the collective agreement. The arbitrator noted that for a rule unilaterally introduced by an employer without the union's agreement, it must satisfy the following requirements: it must not be inconsistent with the col- lective agreement, it must not be unreasonable, it must be clear and unequivocal, employees must be informed about it and the conse- quences of a breach, and it should be consistently enforced. In the case of Corner Brook Pulp and Paper's drug and alco- hol policy, there was no evidence that it conflicted with the collec- tive agreement — in fact, it com- plied with the province's Smoke Free Environment Act, 2011 and the Criminal Code of Canada. In addition, the policy was clear and unambiguous and had been brought to the attention of all employees when implemented. There was also no evidence that the policy had been applied in- consistently, said the arbitrator in finding that the policy was rea- sonable. The arbitrator also found that the testing was not random and employees could be tested for drugs in a safety-sensitive work- place if there was evidence of a drug problem at the workplace. The discovery of the marijuana roaches in the shelter was "some evidence of a drug culture taking hold in this safety-sensitive work- place," the arbitrator said, noting that only employees on duty in the shipping department who were required to be capable of operat- ing the clamp trucks were tested. The arbitrator determined that the testing was reasonable and dismissed the grievance. Reference: Unifor, Local 64 and Corner Brook Pulp and Paper. Sheilagh Murphy — arbitrator. Harold Smith for employer. Monty Fudge for employer. May 31, 2021. 2021 CarswellNfld 272 supervised youth service officers who worked directly with clients. Shkuratoff was at the same level of pay and classification as YSMs. On April 28, 2020, the min- istry sent a memo announcing that frontline YSMs would be entitled to "Institutional CO- VID-19 Response Pay" of up to $890 per month until Aug. 13. This pandemic bonus was "in recognition of the dedication, long hours and increased risk of working to contain the CO- VID-19 outbreak." On May 29, the Ontario legisla- ture passed a regulation identify- ing employees in the public service who were eligible for extra pan- demic pay. Retroactive to April 24, the regulation applied to "eligible full-time, part-time and casual employees" in particular work- places. It stated that management employees were not eligible. Shkuratoff eventually learned that he was the only person work- ing within the secure area who wasn't receiving any enhanced pay, with the exception of the health care manager — who was allowed to claim overtime pay during the temporary period when normally they weren't. He filed a complaint with the board, pointing out that all staff and operational managers work- ing within the security fence at Brookside were receiving the enhanced pay except for him- self. He pointed out that he was the same classification and pay level as YSMs, but they received pandemic pay and he didn't. He argued that he regularly assisted his staff and performed similar duties within the secure area, so there was no basis for distinguish- ing him from those who received the extra money. Shkuratoff requested that he be "treated fairly and equally the same as every other employee in the secure section of the facility," pointing to the correctional ser- vice's statement of ethical prin- ciples requiring fair and equitable treatment, as well as legislation that provided for equal pay for equal work. The board found that the On- tario Employment Standards Act, 2000, requires equal pay for equal work, unless the pay differ- ence is on the basis of "any other factor other than sex." Similarly, the correctional service's state- ment of ethical principles ad- dressed workplace harassment and discrimination, so it didn't apply in these circumstances, said the board. The board also found that the regulation expressly excluded management employees, of which Shkuratoff was one. As for the Institutional COVID-19 Re- sponse Pay from the ministry, it wasn't part of the existing terms and conditions of Shkuratoff 's employment and therefore not an issue the board had jurisdic- tion over. "In order for a valid complaint to be filed, the particular com- pensation complained about must form part of the existing terms and conditions of employ- ment of the complaint," said the board. "This complaint does not identify a breach of an exist- ing term of employment. Rather, [Shkuratoff ] is seeking to have a term of employment added to his contract of employment." With no term or condition of employment entitling Shkuratoff to pandemic pay, either under the regulation or the institutional pay for YSMs introduced by the minis- try, the board dismissed his com- plaint. Reference: Shkuratoff and Ontario (Ministry of Children, Community and Social Services). Marilyn Nairn — chair. Erika Montisano for employer. Kevin Shkuratoff for employee. Aug. 3, 2021. 2021 CarswellOnt 11293 Others at similar salary, classifications received stipend Employer found shelter used for cigarettes, marijuana < Pandemic pg. 1 < Proof pg. 1 September 13, 2021 8 Canadian HR Reporter, a Key Media Canada (HR) Ltd. business 2021

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