Canadian Labour Reporter

January 2, 2018

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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8 Canadian HR Reporter, a Thomson Reuters business 2018 January 2, 2018 ARBITRATION AWARDS as if it were (his) own," while he worked as acting sergeant. But in 2012, Najmeddine left his service pistol and Taser in- side his locker and it was not fully locked. Because the gun and Taser could have been accessed by members of the public such as janitors, it was considered not se- cured. On April 25, 2013, Najmeddine was charged with improper stor- age of a firearm, which was a fed- eral statute. In early 2014, he submitted his name into the promotion process to become a sergeant. But in May 2014, his trial came up and he pleaded guilty on the advice of his lawyer. He received an absolute discharge, as expect- ed. In the meantime, Najmeddine had progressed to stage three of the promotion process, but in September, he was advised that his name was being withdrawn due to his guilty conviction. Around the same time, he was charged under the Police Act with two counts of insubordination and one count of discreditable conduct after an internal inves- tigation around the firearms in- cident. Najmeddine received 60 hours' suspension without pay. In 2015, Najmeddine again en- tered the promotion process. But on Sept. 2, Inspector Scott Jones advised via letter that his two sets of convictions would exclude him from the promotion process once again. On Oct. 19, the Edmonton Po- lice Association (EPA) grieved the decision and asked for gen- eral damages of $10,000 to be awarded. It argued the stage-one process unfairly excluded officers from proceeding and it was arbi- trary and unreasonable because it imposed a five-year ban on offi- cers to be considered, despite the finding of an absolute discharge. By not allowing an officer to proceed and fully explain a prior conviction, Najmeddine was not given proper consideration, ar- gued the EPA. And by the wording of the collective agreement, which excluded an officer under "a find- ing of guilt for a criminal (federal) offence," this would not encom- pass Najmeddine who pleaded guilty and was not found guilty. The employer argued that the collective agreement gave it the power to apply certain criteria in the application process. Arbitrator Leslie Wallace up- held the grievance, and ordered $1,000 in damages. "(Najmeddine) and the associa- tion are entitled to a declaration of the breach. It is declared that the removal of (Najmeddine) from the 2015 promotion process at stage one pursuant to the exclu- sion policy in appendix A of the 2015 Promotion Process Guide was in violation of article 9 of the collective agreement." (Appendix A lists items that "may prevent candidate from continuing in the process" and includes: "Outstanding criminal (federal) charge(s) or a finding of guilt beyond the five-year preclu- sion timeframe.") But when the employer decided to add extra criteria in the appen- dix, the agreement was breached because "the employer may not adopt a mandatory policy that excludes at stage one of the pro- motion process certain other- wise-qualifying officers from con- sideration," said Wallace. "The employer would in my view be entirely within its rights to scrutinize candidates on these issues any time after stage one, as the process is presently construct- ed. It is, however, the mandatory exclusion of certain candidates at a stage that is not intended to ex- amine the factor used to justify ex- clusion, that constitutes the viola- tion of the collective agreement," said Wallace. Reference: The City of Edmonton and Edmonton Police Association. Leslie Wallace — arbitrator. Dana Adams, Geoff Hope for the employer. Patrick Nugent for the employee. Nov. 14, 2017. Barsky filled out a special-leave request form and faxed it to the appropriate number. She left the hospital around 9 a.m. Forty minutes later, she arrived home to find her daughter slug- gish and feverish. Barsky began administering care, but at 11 a.m., her daughter vomited. Barsky provided water and Ty- lenol, she testified, as her daugh- ter continued to feel unwell. She vomited three times that day but by 6 p.m., she was feeling better. Barsky continued her care over Saturday and Sunday, as she was not scheduled to work that week- end. On Nov. 7, Barsky was told by the employer, Providence Health Care, that her claim for special leave of 5.5 hours was denied, de- spite her caring for her child and having a special-leave bank bal- ance of 150 hours. According to the collective agreement, special leave was in- tended "to provide care to an im- mediate family member who has a serious illness up to two days at one time." The employer turned down the claim, it testified, because Barsky advised them after the weekend that her daughter had only suf- fered from a cold. Providence Health Care said this does not constitute "serious illness" as per the collective agree- ment definition. On Aug. 2, the union, Health Employers Association of British Columbia (HEABC), grieved the decision and argued: "Small chil- dren that have acute vomiting and diarrhea can develop significant dehydration within a relatively short period of time that could lead to hypovolemic shock, car- diovascular collapse, renal failure and eventual death." The employer countered and said the plain language in the col- lective agreement is clear and Bar- sky's daughter did not eventually suffer anything more than a mild illness, despite its potential to be- come much worse. And because Barsky applied for special leave while at work, she wasn't able, at that point, to prop- erly diagnose her daughter's con- dition, said the employer. Arbitrator Vincent Ready dis- agreed with the hospital and or- dered Barsky be paid the 5.5 hours for special leave. "First, the employer argues that (Barsky) had pre-supposed that the illness was 'serious' as she had filled out the special-leave form prior to assessing her daughter. While I note that this fact is one to certainly consider in these cir- cumstances, I am not prepared to deny the special-leave entitlement on that basis, because I find that once (Barsky) was at home, the daughter's illness had progressed to more than just a fever. As such, the resulting illness was indeed 'serious' even it if may not have been 'serious' at the time that she filled out the form," said Ready. When it denied the travel time to be paid, the employer was clear- ly in the wrong, said the arbitrator. "Finally, the employer argues that the 40 minutes (Barsky) spent in travel from work to her home should not be included because at the relevant time her husband was 'providing care to' her daugh- ter. However, (Barsky) would clearly have to travel to be with her daughter in order 'to provide care to' her," said Ready. Reference: Providence Health Care and Health Employers Association of British Columbia. Vincent Ready — arbitrator. Jo-Anne Johannesen for the employer. Laurel Kathlow for the employee. Oct. 31, 2017. 'Mandatory exclusion' breached agreement: Arbitrator < Ailing child pg. 1 < Shut out pg. 1

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