Canadian Labour Reporter

August 6, 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 August 6, 2018 ARBITRATION AWARDS that were available to Jollimore during the period (known as the preferred route, Mountain Road and the College Grant Road). The union, the International Brotherhood of Electrical Work- ers (IBEW), Local 1928, testified Jollimore took what it coined the preferred route during Decem- ber 2017, and continuing through January and February 2018. The route was more than 60 ki- lometres and it should have quali- fied Jollimore to receive the travel benefit, said the union. Both other routes were less than 60 kilome- tres. According to article 15.02(A) of the collective agreement: "In the event that the reporting point for work is located further than 60 kilometres from the employee's place of residence then the em- ployee will be paid room, board and travel allowance of: $180 per day worked." When he wasn't paid the ben- efit, Jollimore questioned his supervisor, who promised to in- vestigate. The supervisor then in- formed Jollimore that according to an inquiry made using Google Maps, Mountain Road was the employer's preferred route and it totalled less than 60 kilometres. On Feb. 1, 2018, Jollimore and IBEW grieved the denial of the benefit. The employer responded on Feb. 16. "According to the map at- tached the distance from his place of residence to current report pt. is 59.2 km. Further, Jollimore re- ported to this location for a least the last two yrs and did not receive room and board." Jollimore testified that because he had grown up in the area, he was familiar with Mountain Road. It was not completely paved, and it was rarely graded. As well, tes- tified Jollimore, the school bus he took as a child avoided large parts of it and it also contained two parts that were swampy. After the grievance was filed, said Jollimore, he noticed a sec- tion of it was icy and marked with red pylons, presumably by the transportation ministry, which in- dicated it was unsafe. His wife and her father had got- ten stuck for an hour and a half on one day in January, he said. Employees are obligated to travel the shortest route when possible, said the employer, and Jollimore and the union failed to prove that the road was unsafe during the months in question. Arbitrator Augustus Richard- son agreed and denied the griev- ance. "I was not persuaded that the union had established on a bal- ance of probabilities that win- ter conditions on any particular day or series of days during the months of December 2017, and January and February 2018, had rendered the Mountain Road so hazardous that no reasonable driver (let alone Jollimore) would use it for purposes of driving from his or her residence to their re- porting point." Despite Jollimore's local knowl- edge, "I was not persuaded that (Jollimore's) past knowledge and experience of winter driving con- ditions on Mountain Road was enough to meet the onus of proof that was on the union. I am pre- pared to accept for purposes of argument that local knowledge that Mountain Road under cer- tain winter conditions might be too hazardous to drive could be relevant," said Richardson. "But such an argument re- quired evidence that those partic- ular conditions actually existed on any particular day. There was no such evidence for any particular day, let alone for the three months in question," said Richardson. Reference: Emera Utility Services and International Brotherhood of Electrical Workers, Local 1928. Augustus Richard- son — arbitrator. Rebecca Saturley, Richard Jordan for the employer. Raymond Larkin for the employee. July 16, 2018. Past knowlege not enough to meet onus of proof: Arbitrator < Longer commute pg. 1 tion to his health status. On June 7, a case-management coordinator with Medavie-Blue Cross requested more detailed in- formation from Elliot's physician. Under the heading of prima- ry diagnosis, the doctor wrote: "Weight loss. NYD (not yet de- termined) — psychological?" On the same form, the doctor indi- cated "stressors @ work" under the secondary heading, and added "anxious, nervous, (weight) loss" under the heading of subjective symptoms. The claim was denied on June 16 by Kimberley Field, disabil- ity claim specialist with Medavie- Blue Cross, who had taken over the case. After Elliot appealed, further information from doctors were requested. On Aug. 17, Field advised Elliot that his claim was approved from June 9 until June 27, but after that he was no longer eligible for STD benefits. Two separate doctors indicated that although Elliot was currently experiencing stress that prevent- ed him from working, he would be able to return eventually, after treatment as well as Elliot having no further contact with the co- worker that had originally caused him stress. "The information you and your health professionals provided in- dicated you were able to perform your regular occupation duties, or any accommodated work that is reasonably available through your employer. Although you may have a medical situation, you retain the capability to perform your occu- pation tasks and therefore you do not meet the definition of total disability," wrote Field via letter to Elliot. The union, Unifor, Local 104, grieved the decision, and argued the employer violated the collec- tive agreement when it denied the benefit. After a "functional telephone interview" with Elliot, Field con- cluded that his situation did not meet the definition of disability, so that was why she denied the claim. But, said the union, Field was not qualified to make such a de- termination. Arbitrator Michel Doucet agreed and ordered Elliot to re- ceive 15 weeks of STD payments. "Having considered the medi- cal evidence that supports the conclusion that (Elliot) was diag- nosed with anxiety and stress, I am satisfied, on a balance of prob- abilities, that (Elliot) was unable, at the relevant time, to perform the duties of his occupation be- cause of his medical condition. I therefore conclude that he is en- titled to the short-term disabil- ity benefits according to article 23.01," said Doucet. When Field denied the claim, she relied too heavily on their talk via phone, according to the arbi- trator. "Instead, in disregard of the medical information before her, Field decided to give preference to what the grievor had told her dur- ing their phone conversation of June 27, 2017 ," said Doucet. Grand Lake Timber's argument that when it accommodated Elliot by segregating him from the of- fending coworker, that was suffi- cient to alleviate his disability was dismissed by the arbitrator. "In this case, it might be that the relationship between the grievor and a coworker contributed in a large measure to his condition. It might also be that (Elliot) is func- tioning better at home. However, that in itself, is not an appropriate basis for denying his claim," said Doucet. Reference: Grand Lake Timber and Unifor, Local 104. Michel Doucet — arbitrator. Clarence Bennett, Sheila Lanctôt for the employer. Brenda Comeau for the employee. May 30, 2018. 2018 CarswellNB 208 < STD benefits pg. 1 "That in itself, is not an appropriate basis for denying his claim."

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