Canadian Labour Reporter

September 17, 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 September 17, 2018 ARBITRATION AWARDS was the correct price because Cit- rus Wave was the only flavour that was not part of the $2.99 sale. KW then asked Lori Johnson, front-end supervisor, to help. Johnson and KW reversed the charge on the pop and advised the customer of the correct price. After Johnson left the till, KW believed that under the store's fairness policy, when a scanning problem was found, the customer should have received one item at the sale price and a second item for no charge. KW said she believed Johnson told her to "give it to her at the sale price" before she left the till. A few minutes later, Johnson returned and discovered the error. When she told KW about it, KW told Johnson that the customer was another employee's grand- mother, which made Johnson question her motivation. After an investigation meeting on Jan. 13, KW was suspended without pay on Jan. 24, and she was terminated on Feb. 16. "We have concluded our inves- tigation and have determined that you intentionally gave away prod- uct against the direction from your supervisor and are in viola- tion of the internal-theft policy. During the interview you showed no remorse for your actions," said the termination letter. The union, Union of Cal- gary Co-op Employees (UCCE), grieved the dismissal. It argued the Co-op's scanning policy and the instructions given by Johnson during the incident were unclear and easily led to KW making a mistake. As well, during the Jan. 13 meeting, KW wasn't told it was a security investigation, which breached the collective agree- ment. KW was blind-sided dur- ing the meeting because she only believed it was a coaching session, not disciplinary, said the UCCE. Arbitrator Allen Ponak upheld the grievance, but said a four- month suspension should be sub- stituted. "While I have accepted that (KW) gave customer A free prod- uct because she truly believed the fairness policy entitled the customer to free product, (KW) committed several other offences in the process that justify severe discipline." (KW had been warned numer- ous times over the years about her overzealous customer-service practices, such as accepting ex- pired coupons, and encourag- ing customers to purchase more items to take advantage of money- saving deals.) "(KW) had a history of dispens- ing her own brand of customer service in violation of rules. She had been chastised but never dis- ciplined. The employer would be on firmer grounds for termination if progressive discipline had been imposed with no consequential change of behaviour. It was not reasonable for the employer to be- gin the disciplinary process with termination," said Ponak. KW's lack of remorse was cited by the arbitrator as a factor is the suspension. "At the arbitration hearing, she heard ample evidence to demon- strate that she applied the fairness policy without authorization, that she applied the policy in cir- cumstances when it did not apply, and that she did not seek clarifica- tion when it was incumbent on her to do so. Yet, (KW) refused in the face of this evidence to admit wrongdoing." And by mentioning a "phantom price-check" during the hear- ing, said Ponak, it speaks to KW's credibility. "It is hard to say whether (KW) was simply confused given the passage of time or deliberately concocted a phantom price check to support her version of events. Either way, I am troubled by (KW's) inability to recognize the fallacy of her testimony." Reference: Calgary Co-Operative Association and Union of Calgary Co-op Employees. Allen Ponak — arbitrator. Thomas Ross for the employer. Kristan McLeod for the employee. Aug. 12, 2018. 2018 CarswellAlta 1634 allowed employees "four (4) regu- larly scheduled consecutive work- ing days in the event of death of an employee's spouse." But the employer refused be- cause it wasn't Koller's husband who died, but rather her ex-hus- band. She was forced to use vaca- tion and statutory holiday days off instead. The union, the Canadian Union of Public Employees (CUPE), Lo- cal 5430 grieved the decision and requested Koller have her vaca- tion and statutory holiday days re- stored into their respective banks. It argued that the provision in the collective agreement could have been used to grant Koller time off. The phrase "or some- one with whom they have had an equivalent relationship" should have been relied upon, said CUPE. Even though the marriage was over, said the union, the couple's twin sons meant they were still bound together in a family bond and, therefore, Koller's relation- ship to him was equivalent to that of a current spouse. But the employer countered and said that unless the collective agreement included the prefix "ex" in front of spouse, it cannot be used to grant leave. The bereave- ment clause should only be used for persons who are actually mar- ried at the time of death, it said. Because she was no longer a spouse, said the Saskatchewan Health Authority, Koller was no lonoger in an "equivalent relation- ship" any longer. Arbitrator Neil Robertson agreed and dismissed the griev- ance. "While it was certainly appropriate for the employer to grant leave to (Koller) to at- tend the funeral and attend to the needs of her family upon the death of her ex-husband and father of their children, the employer was justified in denying bereavement leave." "The union has failed to satisfy the onus of proof to show that the employer breached the collective agreement in failing to grant be- reavement leave to (Koller) upon the death of her ex-husband," said Robertson. The union's argument was not compelling enough to force a pos- itive decision in Koller's favour, according to the arbitrator. "I also considered whether clause 30.05(a) could be read to include an ex-husband as 'an employee's spouse… former… or someone with whom they have had an equivalent relation- ship', by applying the word 'for- mer' to 'someone with whom they… had… the 'relationship' (of spouse). I do not believe such a strained and ungrammatical read- ing is reasonable and I reject such a construction," said Robertson. "If the parties did intent to ex- tend bereavement leave to former relationships, that could have been easily stated, as was done for 'former guardian.' I am not pre- pared to imply such an improba- ble interpretation and application of this provision." Reference: Saskatchewan Health Authority and Canadian Union of Public Employees, Local 5430. Neil Robertson — arbitrator. Jolene Horejda, Tracie Nielsen for the employer. Gary Day, Linda Vancuren for the employee. May 4, 2018. 'Strained, ungrammatical reading' unacceptable: Arbitrator

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