Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2017 September 25, 2017 ARBITRATION AWARDS September 25, 2017 Airline didn't exercise all rights in agreement: Arbitrator to take the day off due to ongoing stress about his brother's situa- tion. Martinez's brother had addic- tion issues and he had been ar- rested three times in four months, and Martinez was worried about his well-being. On Feb. 29, Martinez was scheduled to be back on shift but he phoned Mallard from a doc- tor's office and told him he was advised to take the next two weeks off due to stress. Mallard asked Martinez if he wanted to come in to talk about it, but Martinez testified he thought Mallard was referring to his brother, instead of his own illness. On March 3, Mallard again phoned Martinez to inquire about how he was feeling. Mallard left a voice mail mes- sage, but the phone call was not returned by Martinez. During a March 9 management staffing meeting, no contact had been made with Martinez regard- ing a possible return to work. It was decided because he had not provided ADM with a good rea- son he wasn't back on the job, he would be terminated. The next day, a letter was sent to his home that said: "On Feb. 26, 2016, you called your supervisor to let him know that you were sick and unable to come to work. You said that you would be providing a doctor's note on Feb. 29, 2016, to validate your time off as being sick until approximately March 14, 2016. Since then, ADM has had no further communication from you and there has not been any medi- cal documentation given to ADM to corroborate your alleged medi- cal issue and time off. Based on your actions, you therefore leave ADM with no option other than to sever our employee/employer relationship." Despite a vague promise to come in, Martinez didn't return to ADM and produce the doc- tor's notes until March 15 when he faxed two notes that said he would be back to work on March 28. The union, United Food and Commercial Workers, Local 401, grieved the decision and asked the company to reverse the termina- tion and award Martinez $30,000 in compensation for grief and dis- tress. Arbitrator Andrew Sims al- lowed the grievance and ordered to company to hire back Martinez, but he disallowed the $30,000 re- quest. "At best, the grievor misun- derstood the invitation to come in and talk. Certainly Mallard maintained throughout that he expected Martinez to come in, but the firmness of that expectation appears to have grown as time passed," said Sims. "I do not find convincing the implication in Mallard's evidence that suggests Martinez was delib- erately avoiding keeping the em- ployer abreast of what was going on," said Sims. The contention that Martinez was ordered to attend the office and provide a note was dismissed. "I find no sufficient evidence that Martinez was ever told to bring in a medical note and find the contrary to be the more prob- able. While Martinez had been invited to come in for a talk at the outset on Feb. 29, nothing turned this into an order or an obligation," said Sims. "I accept as genuine Martinez's understanding that the invita- tion 'to come in and talk about it' referred to his brother's firing and not to his own absence " said Sims. Reference: ADM Milling and United Food and Commercial Workers, Local 401. Andrew Sims— arbitrator. William Armstrong for the employer. Katrina Piechotta for the employee. Sept. 5, 2017. < Calgary pg. 1 pany if the employee quit before a 12-month period had elapsed. A second upgrade training bond with a value of $6,000 was issued on Aug. 8, which was in- tended to replace the first one, ac- cording to a letter from Gabriella Marsala, director of human re- sources. But Sipko advised Jeff Tilla- paugh, chief pilot, that he would not accept the new bond and he didn't sign the form. According to Sipko, Tillapaugh advised him that Air Georgian would simply apply the bond de- spite Sipko's actions, but the em- ployer denied this conversation ever happened. Sipko received the training and was put into a higher compensa- tion level as a captain on Aug. 28. On Feb. 10, 2017, Sipko re- signed from Air Georgian, within the 12-month period stipulated in the training bond. His final pay was on Feb. 28, but the company deducted $2,992.08 and labelled it as a pro-rated train- ing bond deduction. Sipko and the union, Air Line Pilots Association, grieved the de- duction and argued the company breached the Canada Labour Code. It said the amount of compen- sation owed to the company was not the issue, but the fact the com- pany took the extraordinary step of making a large deduction with- out obtaining Sipko's signature on the second training bond. Air Georgian argued that be- cause Sipko successfully complet- ed the training, it was implied that he accepted the terms of the new training bond. And it relied on a clause in the collective agreement that said if a pilot takes upgrade training after the first signed bond is in effect, "the initial bond will be terminat- ed and the upgrade bond will take effect." Arbitrator Russell Goodfellow upheld the grievance and ordered Air Georgian to refund Sipko the amount of the original deduction, with interest. "I find and declare the company breached the code in making the deduction," he said. The employer arbitrarily decid- ed to impose the training require- ment bond on Sipko — despite him not signing the new bond form — and that was inappropri- ate, according to Goodfellow. "Express authorization was required for the deduction to be made from wages and, in my view, there was no such authorization in this case. The collective agree- ment does not provide for it, the bond does, and the bond requires employer and employee signa- tures. The latter was missing. Sipko did not sign the bond, to the knowledge of the company, yet the company provided the train- ing anyway." The company should have ad- justed the collective agreement during negotiations if it wanted to impose training on pilots without a signature, said the arbitrator. "The perhaps unfortunate bot- tom line is that the company did not avail itself of its clear collec- tive agreement right to require Sipko to enter into the bond as a condition of receiving the train- ing. It trained him notwithstand- ing. "That being the case, the com- pany was not authorized to make the impugned deduction from Sipko's wages," said Goodfellow. Reference: Air Georgian and Air Line Pilots Association. Russell Goodfellow — arbitrator. Lorenzo Lisi for the employer. Jesse Kugler for the employee. Sept. 5, 2017. < Ontario pg. 1 "Sipko did not sign the bond, to the knowledge of the company, yet the company provided the training anyway."

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