Canadian Labour Reporter

July 30, 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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7 Canadian HR Reporter, a Thomson Reuters business 2018 CANADIAN LABOUR REPORTER ARBITRATION AWARDS to work the same day at 3:30 p.m., and Mallare felt he would be on time to begin his shift. He and his wife travelled to the Calgary Philippine consulate so they could apply for permanent residency. Mallare's original passport had been in the trunk of his car, but it was stolen. He was unable to book an online appointment, but Mallare was advised by immigra- tion officials that he could take a chance and show up at the consul- ate first thing in the morning to re- ceive a replacement passport. The couple drove to Calgary and they were sixth in line at the office's opening at 8:30 a.m. Mallare testified that he experi- enced problems when the consul- ate officials advised him that his Philippine birth certificate didn't show his exact place of birth, but that he could swear an affidavit and the issue would be resolved. At 11:15 a.m., Mallare phoned his employer and advised them he would be late for his shift. He called again at 12:36 p.m. and left a voice message indicating he would be even later. Finally, at 4:59, he advised the employer that he would begin his shift at 7 p.m. Mallare signed into his shift at 7:20 p.m. The first two times he called the employer, Mallare only said he had errands to run but he didn't provide any further details. It was only on the final call that he ex- plained to the working leader for the evening shift exactly why he would be late. Mallare testified that if the em- ployer had offered him time off for the day, he would have accepted, but no offer was forthcoming. However, David Partridge, man- ager of environmental services, testified that had Mallare re- quested time off on his first call, it would have been granted as the employer would have had enough time to schedule a replacement. After an investigation, Mallare was terminated on Sept. 26. It was the culmination of previous late- ness, testified the employer, and therefore justified. Mallare was issued a written warning on Oct. 15, 2015, a one-day suspension on Dec. 7, 2015, a three-day suspen- sion on May 24, 2016, and a five- day suspension on July 6, 2016. All were for previous attendance issues. The union, Alberta Union of Provincial Employees (AUPE), grieved the decision. Arbitrator John Moreau, backed by fellow board members Marty Sholtz and Steve Nimchuk, dismissed the grievance. "There are no mitigating cir- cumstances when weighed against the ongoing inability of (Mallare) to arrive for work on time which indicate that he can be relied on to get back on track and show up for work on time. (Mal- lare) was given several opportuni- ties to correct his behaviour but unfortunately failed to do so. It would be inappropriate, when all the circumstances are considered, to interfere with the employer's decision to terminate the grievor in this case," said Moreau. And progressive discipline was properly practised by the employ- er, said the arbitrator. "(Mallare) was warned time and again of the need to curtail his lateness but did not dedicate himself to doing so. This employer followed its own progressive dis- cipline policy to the letter with warnings that (Mallare's) job was in jeopardy if he continued to be late ," said Moreau. "The six-hour return trip, cou- pled with the potential for admin- istrative challenges in obtaining his passport, were hurdles that (Mallare) should have accounted for before leaving on his trip," said Moreau. Reference: Alberta Health Services and Alberta Union of Provincial Employees. John Moreau — arbitrator. Monica Bo- kenfohr for the employer. David Lardner, Kathie Milne for the employee. June 26, 2018. 2018 CarswellAlta 1254 Should have accounted for six-hour return trip: Arbitrator < Lateness pg. 1 his incarceration were shared. But on Nov. 9, C.G. was again arrested. His lawyer immediately informed the WFPS of his arrest and she shared her opinion that C.G. would not be released on bail and, therefore, he was unable to attend future scheduled shifts. On Nov. 29, C.G. was placed on an unpaid leave of absence, as he had already used up his annual- and sick-leave credits. On Dec. 29, an HR consultant sent a letter to C.G.'s home ad- dress that read: "You have been absent from work without contact since your arrest on Nov. 9, 2015, which has placed your ongoing employment status with the City of Winnipeg in question. Please be advised that the service requires verification of the court proceed- ings stemming from your arrest and your expected return-to- work date." In the letter, C.G. was warned that if a reply wasn't received by Jan. 15, 2016, his employment sta- tus could be in jeopardy. As he was in jail, C.G. did not see the letter, said the union, the United Fire Fighters of Winnipeg (UFFW), Local 867. On March 14, 2016, C.G.'s lawyer provided a full update on his charges, expected trial dates, and advised the em- ployer that C.G. requested to be placed in a general leave until his legal issues were resolved. A disciplinary hearing on Nov. 10 recommended C.G. be termi- nated. The recommendation was accepted and on Feb. 1, 2017, the employer's chief corporate servic- es officer ruled that C.G. should be dismissed due to "ongoing unavailability for work due to in- carceration (which) is not a valid reason for being absent from work and, as such, it is necessary to ter- minate your employment." The WFPS argued, via the HR consultant at the hearing, that it would have had to pay less in over- time had C.G. been able to work and this constituted a hardship. The consultant said about 150 overtime shifts were paid out dur- ing his incarceration. C.G. was eventually released from prison on Oct. 29. Overall, he spent about two years in jail. The union grieved the decision and argued the employer did not fully consider C.G.'s circumstanc- es — nor his continued willing- ness to provide full information — when it opted for the firing. Arbitrator Colin Robinson agreed and ordered WFPS to re- instate C.G. "While I accept that (C.G.) was absent for an extensive period of time, and that his return to work remained uncertain at the time of the termination, I have de- termined that, in balancing the in- terests of the parties, the scales tip decidedly in favour of (C.G.'s) inter- est in continuing his employment." "(C.G.) did not attempt to con- ceal the fact that he had been charged with offences. He retained counsel and instructed her to pro- vide information regarding his charges to the union and the em- ployer, and to answer any questions they had, which offer was not taken up by the employer," said Robinson. The employer's argument about the hardship due to exces- sive overtime, was dismissed by the arbitrator. "There is no evi- dence that (C.G.'s) absence caused the employer to have to utilize em- ployees on overtime. As the em- ployer's witness acknowledged, overtime usage may result from any number of factors. It is pure conjecture to somehow link the employer's use of overtime dur- ing that period to (C.G.'s) absence," said Robinson. Reference: Winnipeg Fire and United Fire Fighters of Winnipeg, Local 867. Colin Robinson — arbitrator. John Jacobs for the employer. Garth Smorang for the employee. March 15, 2018. < Winnipeg firefighter pg. 1 "(Mallare) was given several opportunities to correct his behaviour. "

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