Canadian Labour Reporter

November 1, 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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The agreement for full-time employees had a provision for paid holidays that stated "the hospital undertakes to grant the following public holidays with pay on the day on which they fall to all employees covered by this agreement." It list- ed 11 holidays plus one floater day. The part-time employees' agreement stated that if a part- time employee worked on any of the holidays listed in the full-time agreement, that employee would be paid time-and-a-half. It also gave them the choice of receiving pay at the premium overtime rate or time off to be taken within 90 days. A letter of understanding in the part-time agreement outlined the process in which part-time em- ployees received shifts — accord- ing to availability, seniority, and operational needs, and the hospi- tal wasn't required to offer over- time shifts. It also stipulated that full-time employees had prior- ity for overtime opportunities, fol- lowed by part-time employees and then casual employees. The hospital started offering shifts on holidays to part-time em- ployees when full-time employees took them off and the union filed a policy grievance arguing that the full-time bargaining unit mem- bers had the right of first refusal for those shifts, as those qualified as overtime shifts. It argued that the Ontario Employment Stan- dards Act, 2000 (ESA) exempted hospitals from providing statutory holiday pay or time off to employ- ees, so a public holiday should be considered "just a regular working day." As a result, any shifts on holi- days should be offered to full-time employees first under the letter of understanding. The union also argued that when the hospital scheduled part- time employees to work on a pub- lic holiday during what would have been a full-time employee's regu- lar shift, it violated the full-time agreement's prohibition of having anyone other than that bargaining unit's members performing that work. The arbitrator disagreed with the union's characterization of holidays as "regular working days." Although the ESA exempted hos- pitals from providing holiday pay or time off, the collective agree- ment negated that by treating holi- days differently. The agreement indicated that employees were "granted" the holidays in recogni- tion of the fact that it was a con- tractual rather than statutory right to the paid holiday, the arbitrator said, adding that full-time work- ers weren't laid off on holidays but rather received a day off with pay. Scheduling part-time workers to work holiday shifts did not trigger a layoff of full-time workers, the arbitrator concluded. As for the union's argument of improper assignment of bargain- ing unit work, the arbitrator found that the full-time and part-time bargaining units performed "es- sentially the same duties." If the full-time collective agreement prevented part-timers from work- ing for that reason, then part-tim- ers wouldn't be able to fill in for full-timers on vacations, leaves of absence, or sick leaves. "The part-time employees would also be unable to perform any of their normally assigned duties," said the arbitrator. "That would obliterate one of the main purposes for having a part-time workforce!" The arbitrator also found that the letter of understanding speci- fied the order of priority for over- time, which indicated that the par- ties knew how to "incorporate the kind of language that would give full-time employees the right of first refusal." That language wasn't used in reference to paid holidays, so there was no intention to use it in that context, said the arbitrator in dismissing the grievance. Reference: Sinai Health System and National Organized Workers Union (MSH-FTS-2019-0001). Paul Knopf — arbitrator. Sarah Eves, Justin Choy for employer. Daniel Tucker-Simmons, Claudia Gasior for employee. Sept. 7, 2021. 2021 CarswellOnt 12670 but since he had filled out an as- sessment for another job earlier, he had another chance. In early 2021, Irving started enforcing a policy of recording hazards identified and corrected during each employee's shift. Em- ployees were informed that they were expected to submit at least one form per week. Donnelly was told at a toolbox meeting that if anyone went longer than two weeks without submitting a form, there would be discipline. On Feb. 9, Donnelly was working on a pier at the Hali- fax Dockyards. Irving's account manager arrived and found that the crew was at lunch. However, the crane's upper engine was left running, contrary to standard procedure. A week later, Irving wrote two warning letters for Donnelly — one about failing to provide haz- ard ID forms for two consecutive weeks and one about the crane's engine left running. The Halifax operations manager put the let- ters in an envelope with Donnelly's name on it and drove to the dock- yard, where he asked Donnelly to come back to the office with him in his truck. On the way, the manager told Donnelly to take the rest of the day off. The envelope was on the cen- tre console and slid into Donnelly's lap but he put it back. When he ex- ited the truck, he left the envelope. The next day, Donnelly had a meeting with management. They informed him that he was termi- nated because he had left the crane running on the pier, he didn't complete hazard ID forms and he didn't acknowledge his conversa- tion with the operations manager by taking the envelope — which it considered insubordination. The union grieved, arguing that no reasonable employer would have disciplined an em- ployee for leaving the crane en- gine running and Donnelly didn't know the envelope in the truck was for him because the manager didn't tell him. The arbitrator found that the last-chance agreement was "clear- ly worded and clear in its intent" to trigger termination for any conduct that would normally jus- tify any discipline. There was no language limiting the scope of the misconduct that could lead to dis- missal. The arbitrator also found that the evidence indicated that Don- nelly was aware that there was an envelope in the truck and that it was for him. In addition, Don- nelly had to have realized that Ir- ving was concerned with his con- duct — his supervisor came to the worksite to take him to the office, he was told to take rest of the day off with a meeting the next day, and there was an envelope with his name on it. However, Don- nelly resisted acknowledging the situation. The arbitrator found that Don- nelly didn't need a direct order to pick up the envelope as he knew it was for him. His refusal to take it with him was a refusal to obey instructions from his employer, which was insubordination, said the arbitrator, adding that in- subordination was disciplinable conduct that met the criteria for termination under the last-chance agreement. Reference: IUOE, Local 721 and Irving Equipment. Augustus Richardson — arbitrator. Brian Johnston, Annie Gray for employer. Gordon Forsyth for employee. Sept. 3, 2021. 2021 CarswellNS 609 Failure to take personalized envelope equals insubordination Ontario hospital gave full-time workers first choice of shifts < Ignore pg. 1 < First refusal pg. 1 7 CANADIAN LABOUR REPORTER CANADIAN LABOUR REPORTER COLLECTIVE AGREEMENTS Canadian HR Reporter, a Key Media Canada (HR) Ltd. business 2021

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