Canadian Labour Reporter

September 20, 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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so it kept one apprentice and one journeyperson technician em- ployed. The positions were of- fered to the journeyperson and apprentice with the most senior- ity. The collective agreement dic- tated that "where circumstances necessitate a reduction of the working force, company seniority shall determine the employee to be laid off subject to Honda Cana- da operational requirements. " About four weeks after the lay- off, Fairway Honda contacted Howe and asked him to tempo- rarily cover vacation for another journeyman technician. Howe accepted the offer and worked for four weeks until May 15, when he was informed that he was no lon- ger needed and would return to layoff. However, when he was sent back on layoff, three out of the four apprentices on the seniority list and two journeypersons were still working. Howe filed a griev- ance, claiming that one of the ap- prentices ought to have been laid off before he was, as he had se- niority. He pointed to the collec- tive agreement's requirement that "for layoff purposes only, when a reduction in workforce is re- quired, the company will include apprentices in the layoff sequence based on seniority." He also noted that provincial apprenticeship guidelines and the collective agreement set the normal ratio of apprentices to journeypersons at 1:1. The union added that "one of the golden pillars of this and any collective agreement is seniority." Fairway Honda pointed out that the collective agreement, while including apprentices in the layoff sequence based on senior- ity, also limited the layoff of ap- prentices to roughly 50 per cent of the total number of apprentices employed, and stipulated that "the company will delegate one jour- neyman to supervise up to two ap- prentices working." The arbitrator found that, while the collective agreement referred to one seniority list for the pur- poses of layoffs, it clearly had sep- arate seniority streams for jour- neypersons and apprentices. As its business gradually reopened, Fairway Honda called back jour- neypersons as it needed them and apprentices as it needed them. "Both parties agreed that the seniority list is not dovetailed for such rehire; rather, seniority is traced in terms of seniority of ap- prentices and seniority of jour- neypersons, except where layoff is concerned," said the arbitrator. "There are clearly two separate classifications as articulated and seniority in this workplace has been established and maintained in those separate classifications for recall." However, the arbitrator also found that although Howe knew he was only being recalled tempo- rarily in April 2020, the collective agreement didn't differentiate a temporary recall from a perma- nent one. As a result, Howe was considered recalled to work and the layoff provision applied. This meant that he was included in a single seniority list with the ap- prentices and, since three of the four apprentices were working, the dealership could lay off one of them and still meet the 50-per- cent limit in the collective agree- ment, the arbitrator said. "The collective agreement has express terms… providing for the reduction of the workforce by employee layoff," said the arbitra- tor. "Having called Mr. Howe back to work, sending him back to lay- off was reducing the workforce, and the employer's management rights were then subject to the ex- press terms of the agreement." The arbitrator determined that one of the apprentices should have been laid off before Howe on May 15, 2020, and Fairway Honda breached the collective agree- ment. The matter of damages was left to the parties to negotiate. Reference: IAMAW and Fairway Honda. Sheilagh Murphy — arbitrator. Ruth Trask for employer. Rick Arsenault for employee. Jan. 22, 2021. 2021 CarswellNfld 275 Shortly after Arnot left his room, his supervisor contacted him. Arnot explained that he had diarrhea from eating bad chick- en wings and he didn't have any symptoms related to COVID-19. The supervisor didn't give him any further instructions. Arnot went to lunch with his friend and afterwards did an on- line self-assessment from the B.C. Centre for Disease Control (BCCDC). The test results in- dicated that he didn't appear to have COVID-19 symptoms — the BCCDC didn't include diarrhea as a key symptom, but listed it as an "other symptom." About two hours later, his su- pervisor texted to tell him that he needed to self-isolate and call the 811 information line to request a COVID test, as per Terrapure's pandemic response policy — which did not include diarrhea as a COVID symptom. He was also required to stay away from the mill site until he received a nega- tive test result. Arnot secretly re- corded the conversation because he felt he wasn't being treated fairly. At an investigative meet- ing on Dec. 4. Arnot said that he had gone for a COVID test but the lineup was too long. A second meeting by phone was scheduled for Dec. 7, at which Arnot acknowledged that he lied about going for a test and said he couldn't get through to 811. He said that he did the self-assess- ment that stated he didn't need to take a test. On Dec. 9, Terrapure terminat- ed Arnot's employment for being "wilfully insubordinate by failing to follow direct instruction" and, by his own admission, untruthful about his actions. The arbitrator found that management didn't consider that Arnot didn't have any of the COVID symptoms outlined by the BCCDC and its own policy before telling him to isolate and take a test. Based on the advice from the BCCDC website, a rea- sonable person would conclude that he didn't need to take a test or self-isolate, the arbitrator said, adding that at no point did Terrapure inform Arnot that his failure to do so would result in his discharge. The arbitrator also found that Arnot wasn't given any instruc- tions for several hours — he was just told to rest in his hotel room — and Arnot wasn't familiar with the company's policy, which had not been published, nor had em- ployees been trained on it. The arbitrator determined that there was no insubordination as Terrapure did not have grounds to order him to isolate and take a test. "There is no indication of the employer having engaged in an analysis of whether a demand was justified in light of what they knew at the time," said the arbi- trator. "On the application of the employer's policy alone a demand would not have been justified, as diarrhea is not a listed symptom of COVID." The arbitrator found termina- tion was excessive and substituted a five-day suspension for Arnot's dishonesty in the investigation and the surreptitious recording of the phone call. Reference: Terrapure Environmental and IUPAT, District Council 138. Paul Love — arbitrator. Mary-Lee Davies, Sean Tevlin for employer. Bennett Arsenault for employee. July 7, 2021. 2021 CarswellBC 2450 Technician had no symptoms identified by public health Two separate streams for recall, one for staff reductions < COVID-19 pg. 1 < Seniority pg. 1 September 20, 2021 8 Canadian HR Reporter, a Key Media Canada (HR) Ltd. business 2021

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