Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2018 October 15, 2018 ARBITRATION AWARDS employees requested it for the company's sickness and disabil- ity benefit program (SDB), which was being transferred to Manulife. On June 27, a Bell employ- ee heard back from Jonathan Levesque, case manager at Manu- life, after the employee asked for Vicente to be involved in his STD decision. "We can be available to- day for a call with you. We would keep this call with you only, as we are not discussing medical in- formation with a third-party in- volved in a call." The employee responded that it was his right to have union rep- resentation during that call. But Levesque responded: "It is not part of our process to have a union representative involved in our calls." The call went ahead and the employee was advised by Vicente to listen carefully and ask any questions he had as it was impor- tant not to delay the STD process. After a series of meetings to address the grievance between union and management, the com- pany responded on April 10, 2017: "The process across Bell and all of its companies that utilize Manu- life in the management of SDB cases; Manulife does not engage with a union representative on employee files. This is consistent throughout the organization." Bell argued that article 28.09, which dealt with the SDB process, didn't provide for union represen- tation during the claims decision. Employee confidentiality can- not be maintained, argued the company, if union stewards "in close proximity to the employee" are able to see sensitive employee information, according to the em- ployer. On May 10, Unifor advised Bell that it wished to enter arbitration to have the matter settled. The employer argued that the grievance was filed after the time limits lapsed, but the union said that during the initial talks about the changeover from Bell Aliant to Bell Canada, there was the under- standing that union representa- tion would continue to be a part of the claims process and therefore it only fully realized that the com- pany would not allow union mem- bers to be present in 2017. The union argued that under article 7.05 of the collective agree- ment, "all employees have the right to active representation." But, countered the employer, if employees have unfettered access to representation, this could lead to absurd situations such as union stewards attending every single company meeting. Arbitrator Michel Doucet dis- agreed with Bell Canada and up- held the grievance. "Whatever is the practice of the employer in other jurisdictions is not relevant. What is relevant in this case is the collective agree- ment between the employer and the union. Article 7.05 expressly recognizes what I believe already exists implicitly in all collective agreements, that is the right to union representation in all mat- ters relating to the terms and con- ditions of employment, unless expressly stated otherwise in the agreement. In other words, if the employer wants to exclude union representation in the STD-claims process, it will have to do so at the negotiation table." When Bell changes its bene- fits provider, the changes cannot negatively affect the contract, said Doucet. "The employer cannot by the introduction of some administra- tive changes modify unilaterally the collective agreement. Article 28.09 still applies to the modifi- cations brought by the employer. Therefore, I cannot see how the employer could justify a refus- al for union representation if a member of the bargaining unit makes such a request." Reference: Bell Canada and Unifor, Local 506. Michel Doucet — arbitrator. Frédéric Henry for the employer. Joël Michaud for the employee. Sept. 19, 2018. 2018 CarswellNat 5213 After that, MacKenzie also emailed Damji: "I think we will have you move to T11 in six weeks. That will allow me time to post, possibly interview and fill before we move you. You can cer- tainly tell people about your new position. My plan was to send a memo when I return from a one- week vacation next week." Meanwhile, management de- cided that the posting did require candidates to hold the master of social work and it again changed the posting on May 2. Damji again applied but she was unsuccessful and another person won the job. She filed two grievances against the decision: one for the employer awarding then rejecting her, and another for not interviewing her for the third posting. Damji argued the employer should have considered her past record, which included work as a social worker on the T11 ward be- tween 2004 to 2008, when she was bumped by a more-senior worker. As well, Damji worked as a so- cial worker for six years on anoth- er floor (CP8) that also provided acute care for elderly patients. The employer argued that it required the master's designation due to the complex care required for its elderly patients. Arbitrator John Kinzie dis- agreed and upheld the second grievance about the employer not considering her qualifications, but dismissed the first one which contested the cancelled posting. "By way of remedy, the second social worker position on T11 is declared vacant and a re-run of the posting for that social worker 1 MSW position is directed," said Kinzie. "Should (Damji) apply for that vacancy, she will be entitled to have her claim of equivalent quali- fications to the required master's degree considered by the employ- er in a fair and reasonable way as a part of the process for the selec- tion of the successful applicant for that vacancy." During the hearing, Damji showed she had performed some of the tasks that an MSW worker had done, such as psycho-social assessments, which proved she should be considered as having master's equivalency, said Kinzie. "If after hearing from (Damji) regarding that claim, the selection panel rejects her claim of equiva- lency, that rejection may be the subject of a further grievance and that is where that evidence might be relevant," said Kinzie. "I will say that given (Damji's) bachelor's degree and her 10 years of satisfactory work experience on T11 and CP8, it seems to me the panel would have to have clear and persuasive reasons for reject- ing the grievor's claim of equiva- lency," said Kinzie. "(Damji) was entitled to have her claim of equivalent qualifica- tions to that formal educational qualification considered," said Kinzie. "The employer refused to do so and thereby violated the provin- cial agreement." Reference: Vancouver Coastal Health Authority and Health Sciences Association of British Columbia. John Kinzie — arbitrator. Andres Barker for the employer. Randy Noonan for the employee. Sept. 19, 2018. 2018 CarswellBC 2520 < Social worker pg. 1 Policy modifications cannot change agreement: Arbitrator < Steward pg. 1 "(Damji) was entitled to have her claim of equivalent qualifications to that formal educational qualification considered."

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