Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2018 November 12, 2018 ARBITRATION AWARDS use up before the fiscal year is completed. Could you please pro- vide me with month(s) and dates as to when I could utilize this ac- cumulated time." Currie took more time off but when she attempted to use the employer's web-based vacation booking site and it refused her time off in February, she again wrote an email to Reuber: "As of Jan. 14, 2017, I will have 56 hours of holiday time to use. I went back in and scheduled time off in February (as I would prefer not to be paid out) and those got denied. I would appreciate it if you could give me a week off some- where if possible." It was employer policy for the supervisor to offer alternative dates when time off was denied due to staffing levels, and Currie said she needed some more help scheduling the time. Reuber responded on Jan. 18, and said, "I'm not sure how many hours you have of holiday time but if you would like to take Jan. 24, 25, 26, 27 off next week I could ap- prove that at this point." Currie took those dates off but on Feb. 2, she mistakenly advised her supervisor that more days off in February were unnecessary, because she had completely ex- hausted all of her earned time off. However, Currie had 10.25 hours remaining, but they expired after April 1. The union, Ontario Public Service Employees Union (OPSEU), Local 235, grieved and argued the employer's policy was unfair. The union said that it was the employer's responsibility to schedule time off for employees and it failed to do so in Currie's case. But Community Living Mea- ford countered and said the onus was on the employee to keep on top of vacation scheduling and according to Currie's pay stub on March 18, she had 10.25 vacation hours remaining. If Currie wanted to carry over vacation time, the only way to do so, said the employer, was to sub- mit a request "in writing and the executive director will consider each case on its merits," according to the collective agreement. Arbitrator Louisa Davie agreed and dismissed the grievance. "In this case, (Currie) agreed it was an oversight on her part not to have made a request in writing to carry over the 10.25 hours. It is unfortunate that her oversight has resulted in a loss of some va- cation entitlement. Her oversight however does not mean that the employer has violated the col- lective agreement. The employer is not required to pay out unused vacation and a written request to carryover unused vacation was not made," according to the arbi- trator. It was incumbent upon Currie to manage her own vacation time, said Davie. "In my view, the initial onus to request vacation and ensure that it is scheduled remains with the employee. Moreover, given the facts of this case, it is inappropri- ate to place a burden on (Currie's) supervisor to monitor (Currie's) vacation usage and schedule va- cation for (Currie) when, in her email of Feb. 2, 2017, the griev- or herself advised that she didn't need to schedule more vacation 'as my holiday time has been used up.'" Reference: Community Living Meaford and Ontario Public Service Employees Union, Local 235. Louisa Davie — arbitrator. Bonnea Channe for the employer. Val Patrick for the employee. Oct. 9, 2018. relationship started to fray after Arsenault removed the charge- hand designation from Sandholm. On June 29, 2016, Sandholm and a new charge hand, Bill Wal- ters, arrived at work to begin the day when Arsenault approached. Arsenault questioned Sand- holm about damage to his work vehicle. He reminded both that policy was to inform management of all damage when it happened and not to rely on the mechanic to pass along the information. Later in the day, Sandholm ap- proached Arsenault because he felt he was unfairly targeted. A heated discussion ensued and Sandholm swore at Arsenault. Sandholm was given a written letter of warning for his behaviour. On Aug. 30, Sandholm and Ar- senault met again to discuss more vehicle damage Sandholm had in- curred that wasn't reported. Sandholm was given a one- day suspension on Aug. 31 and a letter: "Upon inspection of the equipment check sheets at the end of the shift on Aug. 30, it was very clear that you did not complete it." On Aug. 9, 2017, Arsenault was informed about a problem with Sandholm's vehicle. When Arse- nault asked why he didn't report the damage, he said he only took the machine to the mechanic. During an Aug. 14 meeting, Arsenault imposed a three-day suspension. After the meeting, the daily check list was amended and a no- tice was added to the top of the page, which read: "All Equipment Damage Must be Reported to the Manager." On Aug. 30, Sandholm arrived at work without safety boots. When a logging truck arrived, he helped while wearing slip-ons. About one-and-a-half-hours into his shift, Arsenault dropped by to see how Sandholm was do- ing. When he saw what he was wearing on his feet, Arsenault told Sandholm boots were required on the job site and he might have broken his foot had a 40-pound crimping gun he was using dropped on his feet. Sandholm wanted to leave the site to retrieve his boots, but he was given a five-day suspension. The union, United Steelwork- ers (USW), Local 1-1937, grieved the discipline and argued Sand- holm wasn't aware that vehicle damage had to be reported to management until the check list was modified. And because Sandholm had never been disciplined for not wearing boots, the five-day sus- pension was excessive. Arbitrator Michael Fleming agreed and ordered a "written warning should be substituted for the Aug. 14, three-day suspen- sion. I also find that a two-day sus- pension should be substituted for the Aug. 31 five-day suspension." The requirement by manage- ment that all damage must be re- ported directly to them was not made clear enough, said Fleming. "While I accept it is likely that on June 29, 2016, Arsenault men- tioned to Walters and (Sandholm) he wanted damage to be reported to him, I am not satisfied (Sand- holm) heard it or that it was ex- pressed or understood as a clear, unequivocal direction. The con- clusion there was at least some ambiguity is reinforced by the fact Walters only recorded the damage to his vehicle on the check list and on June 30, 2016, Arsenault found it necessary to advise Walters that in future, he should report all damage to management. I am sat- isfied (Sandholm) was not part of that conversation." And in cutting down the five- day suspension, Sandholm was being unfairly punished, said the arbitrator. "(Sandholm) did not have any previous discipline involving breaches of the PPE (personal protective equipment) policy. I accept (Sandholm) was in a rush on the morning of Aug. 30, 2017, and did not realize he had forgot- ten his work boots at home until he arrived at work. I am satisfied it was a mistake and was not pre- meditated." Reference: CIPA Lumber and United Steelworkers, Local 1-1937. Michael Fleming — arbitrator. Brandon Hillis for the employer. Sandra Banister for the employee. Sept. 28, 2018. Check list finally amended after 2 suspensions handed down 'Oversight' doesn't mean agreement was violated: Arbitrator < Multiple suspensions pg. 1 < Vacation time pg. 1

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