Canadian Labour Reporter

October 4, 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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their place of work were entitled to time-and-a-half, with a guar- antee of at least three hours' pay at the overtime rate. It also said that "when the work for which the em- ployee is called back is completed, the employee shall be allowed to leave." On the evening of Oct. 16, 2018, LeBlanc was at home on standby when he received a call to respond to an emergency. While driving to the location, he received a second call about a power outage at an- other location. LeBlanc continued to the first location, completed the work, and then drove to the sec- ond location. The second task was completed about 73 minutes after the initial call. The worker prepared a pay sheet and listed the two call-ins separately. When he submitted the form for payment, his super- visor told him that he would only be paid the overtime premium for one call-in because he had only left home to perform work once. LeBlanc and the union filed a grievance claiming that the de- partment had violated the col- lective agreement by not paying LeBlanc the three-hour mini- mum "call-in premium pay" for each call. They argued that the purpose of the premium pay was to compensate employees for the inconvenience of responding to a call at any hour and two calls created more inconvenience de- serving of compensation. It add- ed that the collective agreement stated that once the work for which the employee was called in was completed, the employee was allowed to leave the work- place. A second call at a different location was a different work- place and a different call-in, the union said. The department maintained that LeBlanc was only entitled to one call-in payment because he received the second call before he had left the workplace and wasn't further inconvenienced by the second call. He was already out in the workplace, which in this case encompassed a geographical area with several properties, the de- partment said. The arbitrator noted that since New Brunswick was an officially bilingual province, the collective agreement was in both English and French. To determine the in- tentions of the parties, both ver- sions had to be reviewed to deter- mine a "shared meaning," said the arbitrator. While the English version of the call-in provision concluded with the statement that the employee was "allowed to leave" after com- pleting the assigned work, the French version more specifically stated that the right to leave was automatically given once the as- signed task was completed. This was a clearer expression of the parties' intent, the arbitrator said. The arbitrator found that the collective agreement only ad- dressed the right of the employee to leave the workplace when the work was completed and didn't refer to a situation where a sec- ond call-in is received before the worker leaves the workplace. Without language to the contrary, the second call should be treated as a separate call-in under the col- lective agreement's language, the arbitrator said. "They could, for example, have stated that if a second call is re- ceived while the first call is still not completed, then the employee will not be entitled to the payment of a second 'call-in premium' even if the work is at a different location," said the arbitrator. "However, they did not do so." The arbitrator ordered the de- partment to pay LeBlanc the pre- mium pay for the second call-in. Reference: CUPE, Local 1190 and New Brunswick (Treasury Board). Michel Doucet — arbitrator. Michelle Brun- Coughlan for employer. Monique DesRoches for employee. July 30, 2021. 2021 CarswellNB 377 dictated that permission should be obtained before applying but her manager didn't respond. We- grynowski took this as consent. At an Oct. 18 meeting, the man- ager told Wegrynowski that he wouldn't block her if she was the successful candidate. At the time, there were four employees in Wegrynowski's de- partment. One of them was on sick leave, another had accepted a two-year rotation and had yet to be replaced, and a third was new. The manager soon realized that the department would be down two people and that the rotation would be a demotion for We- grynowski. On Nov. 4, the hiring manager told Wegrynowski's manager that he wanted to offer the position to her. However, the manager decid- ed that he could no longer afford to release her — the ill employee would be off for at least another month and there was still no re- placement for the employee who had left. The manager added that if a permanent position became available, he wouldn't stand in Wegrynowski's way. The manager advised We- grynowski on Nov. 21 that she had been the successful candi- date for the rotation but he could not release her because it would be a demotion. Wegrynowski filed a grievance accusing OPG of breaching the collective agree- ment by how it treated her request and refusing to release her with- out sufficient reason. The arbitrator found that OPG had discretion on whether to grant Wegrynowski's release, al- though it couldn't act unreason- ably in exercising that discretion. Wegrynowski was initially told that she would be released if she was the successful candidate, but the collective agreement didn't re- quire the decision to be made be- fore a job offer was made. Before the offer was made, the manager could hold off on the decision or reconsider it, said the arbitrator, noting that the manager's initial statement could not be consid- ered "a final, irrevocable decision to release" her. "[Wegrynowski] should have understood, and did in fact under- stand, that circumstances might arise that would lead OPG to later decline to release her," said the arbitrator, noting that her depart- ment was down two employees when she applied and things could change if it was still down two em- ployees when the rotation was of- fered. The arbitrator found that the staffing deficiencies and "continu- ing uncertainty about the timing of obtaining replacements" made it a reasonable decision not to re- lease Wegrynowski. However, the fact the rotation would be a demo- tion was irrelevant and wasn't the true reason, so Wegrynowski was treated unfairly when that factor was relied upon. In addition, the manager told Wegrynowski that she would be released if successful but didn't intend to stick to that if circumstances changed. This was a misrepresentation, the arbitra- tor said. The arbitrator determined that OPG had reasonable grounds to deny the release, but it breached the collective agree- ment when it acted unreason- ably in how it exercised its dis- cretion. OPG was ordered to pay Wegrynowski $1,000 in dam- ages for the breach. Reference: Ontario Power Generation and Society of United Professionals. Robert Herman — arbitrator. William Hayter for employer. David Bloom for employee. June 22, 2021. 2021 CarswellOnt 10784. Collective agreement allowed discretion in releasing worker Contract didn't refer to second call, employer must pay twice < Unfair pg. 1 < Premiums pg. 1 October 4, 2021 8 Canadian HR Reporter, a Key Media Canada (HR) Ltd. business 2021

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