Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2018 July 9, 2018 ARBITRATION AWARDS and the next day he informed the employer that he needed to stop drawing on the retirement-bank benefit and be placed onto sick leave, thus preserving the retire- ment-bank benefit. Wood's doctor informed the employer that due to his heart at- tack, he would not be physically able to return to work until Feb. 15. Ontario Power Generation refused the request and ordered Wood to continue to draw from the retirement bank until his re- tirement date of Feb. 1. The union, Power Workers' Union (PWU), grieved the deci- sion and argued Wood was en- titled to the sick-leave benefit, as per article 6.7 of the collective agreement which said, "an em- ployee may defer vacation equiva- lent" and the article reinforced this when it referred to "deferred vacation in the retirement bank." "When an employee on va- cation becomes seriously ill or injured and as a result must be re- moved from vacation setting en- tirely, he or she should be entitled to sick leave," read article 6.5.3 of the collective agreement under the heading of postponed vaca- tions. The employer countered and said one aspect of the rules in 6.7 were clear and would not allow Wood to interrupt his vacation time. "When the employee takes time from the retirement bank, such time must be taken by the employee in one-consecutive per- iod after they become eligible for an undiscounted pension and im- mediately preceding their retire- ment," read the agreement. The article that referred to re- tirement bank (6.7) should have only come into play when dealing with the bank, argued the employ- er, and it also didn't include any language about sick leave. Arbitrator Larry Steinberg up- held the grievance and ordered Wood to be fully compensated for all lost benefits. "There is no language that re- stricts employees who are taking deferred vacation from the retire- ment bank from accessing other provisions of the collective agree- ment that might apply to them. And the clear language of item 6.5.3 permits employees who are on vacation to convert the time to sick leave in the case of serious ill- ness," said Steinberg. "In the absence of language to the contrary, I am of the opinion that the language and structure of item 6.7 relied on by the employ- er does not preclude employees from accessing other collective agreement benefits, such as item 6.5.3, for which they are entitled." And Ontario Power's argu- ments were not persuasive, ac- cording to the arbitrator. "Moreover, the purpose of a sick leave benefit is to cover an employee's income during a per- iod of illness whereas a vacation benefit is to provide income dur- ing a period where the employee can rest and pursue pleasurable activities. Clearly, the grievor was unable to rest and pursue such ac- tivities after his heart attack," said Steinberg. "As noted above, the employer argued that granting sick leave to (Wood) on these facts would be inconsistent with the purpose of sick leave which is to provide in- come to an employee who is ex- pected to be at work but cannot attend due to illness. Since the grievor was on vacation, he was not expected to be at work," said Steinberg. "However, as the union point- ed out, item 6.5.3 is an exception to that general rule in the limited case of an employee who suffers a serious illness while on vacation." Reference: Ontario Power Generation and the Power Workers' Union. Larry Steinberg — arbitrator. Jonathan Maier for the employer. Ian Roland for the employee. June 25, 2018. Article doesn't override other agreement article: Arbitrator < Heart attack pg. 1 posting was noted by the union because the return-to-work (RTW) date for the original ac- counting clerk had been changed from Aug. 14, to Jan. 18, 2018. After a meeting, the employer agreed to repost for a finance- clerk position. But a qualified candidate didn't appear and the posting was closed. Instead, Miramichi advised CUPE that the employer "currently has an open competi- tion for temporary clerical staff which closes on Friday, Sept. 22, 2017, which may identify a quali- fied candidate." Three persons were hired into temporary positions on Oct. 30. On Dec. 5, during a labour- management meeting, the union expressed displeasure because "an employee with 22 years municipal experience expressed interest in the position however, (employee ) was not being considered." On Dec. 21, MS emailed the union and said one of the new temporary hires would cover the open position and be paid 80 per cent of the wages until the new RTW date of May 1. CUPE countered and said the new RTW should have been in- cluded in the posting because about 45 current employees may have applied if they knew that the position would last for that long. On Feb. 1, 2018, CUPE filed a grievance and argued the city vio- lated the collective agreement by not reposting the position (with updated information) when it was unfilled for 20 days. The employer argued that reposting would have been too costly, especially considering the training costs. According to arti- cle 14:10, said the city, temporary employees may be hired to fill po- sitions. As well, the city was within its rights to end the posting process after the first candidate identi- fied turned down the offer in June 2017, it argued. Arbitrator Guy Couturier dis- agreed. "I am of the view that the city did not respect its obligations under article 14 of the collective agreement and the grievance is thus allowed. I do, as a result, de- clare the finance clerk job posting process a nullity and order and di- rect the city to repost the position of finance clerk, using the same form but adding to it the expect- ed duration of the term and the wage rate associated with the job, provided always, and only if, the RTW date of the accounting clerk is extended beyond May 1, 2018. Otherwise the repost becomes academic and of no useful arbitral or labour relations purpose." The employer "was not fair and reasonable in the manner in which it conducted the job post- ing of the finance clerk" and as a result, it didn't "substantively comply" with the posting require- ments of the collective agree- ment, said Couturier. And the city's actions harmed the hiring process, according to the arbitrator. "It is the incremental omis- sions by the employer in failing to disclose and provide legitimate information to the union that had a cumulative effect, when consid- ered as a whole, on limiting the ability of the union, and its mem- bers, to access information that affected decisions on whether to apply for the position and a pos- sible corresponding reduction in the pool of otherwise skilled and qualified applicants available to the employer," said Couturier. "That is, it illustrates the lack of fairness exhibited in this dispute by management." Reference: The City of Miramichi and the Canadian Union of Public Employees, Local 3863. Guy Couturier — arbitra- tor. Clarence Bennett for the employer. Robert Le Moignan for the employee. April 28, 2018. 2018 CarswellNB 162 < Replacement process pg. 1 Employer "was not fair and reasonable:" Arbitrator.

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