Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2018 December 10, 2018 ARBITRATION AWARDS deliberations were ongoing and the trial was yet ready to proceed. Both officers were advised by the attorney that they might be needed the following day and she would call them if that was the case. The following day, both officers attended court and were again told that their presences were not required for that day, but they should be prepared to testify the rest of the week. After the pair left the court- house, they were each phoned by the Crown attorney who said Bon- thron and Lepere were no longer needed for the case, as the accused pleaded guilty. Because the fol- lowing days' appearance (Feb. 15) was less than 24 hours away, Bon- thron and Lepere each filed for short-notice cancellation pay but both were denied. The three other officers all had similar experiences: Armstrong attended court on July 13, and was told by the Crown he would not be required the following day; Tyrvainen went on Sept. 11 and was told he was no longer needed; Dubuc testified on May 2, and he was told the rest of his week was cancelled. The employer, the Thunder Bay Police Services Board, argued that in each of the cases, the officers were no longer required by the Crown, so their obligations were "concluded" and, therefore, the cancellation policy did not apply. The TBPA countered and said the collective agreement called for cancellation pay, which is not the same as concluded, and the plain language of the agreement must be considered in this case. Arbitrator Kelly Waddingham agreed and ordered all outstand- ing claims to be paid in full. "I reject the employer's broad- er 'contextual' argument for a different understanding of the word cancelled as it is used in article 6.02(a). The fact that an officer completes their testimony and thus fulfils the purpose of the subpoena does not mean that their court attendance is not — or cannot — be cancelled within the meaning of article 6.02(a). Whether an officer testifies or does not testify, the determina- tion of whether they are (or con- tinue to be) on notice that they are required to be in court in accordance with the subpoena is the prerogative of the Crown. Regardless of the reason, the of- ficer's court attendance is only effectively 'cancelled' when they are informed by the Crown that they are no longer required to be in court on the day (or on days) specified in the subpoena," said Waddingham. The arbitrator rejected the em- ployer's argument about the exact reasons for the officers being told to go home. "Nothing in the wording of the provision suggests that there is any relevance to the reason why the officer is no longer required to attend court. Nor does the reason affect the extent of disruption or inconvenience potentially caused by the short notice. Therefore, there is no reason to accept that the term 'cancelled' should be read as being conditional upon the reason for the cancellation," said Waddingham. "Consequently, I find that the collective agreement dictates that officers' whose court attend- ance is cancelled with less than 24 hours notice — regardless of the reason for the cancellation — are to be paid four hours straight time pay in accordance with article 6.02(a)." Reference: Thunder Bay Police Services Board and Thunder Bay Police Association. Kelly Waddingham — arbitrator. Holly Walbourne for the employer. Gary Hopkinson for the employee. Oct. 26, 2018. 'Concluded' not same definition as 'cancelled': Arbitrator < Court-leave payments pg. 1 employees shall be paid in addi- tion to their regular rate of pay, four per cent of their gross earn- ings in lieu of paid holidays," according to article 6.04 of the col- lective agreement. Normally, part-time workers were given holiday pay based on hours worked, but because Bob- oescu was on leave, it wasn't rele- vant. Instead, the collective agree- ment (article 21.09) called for an employee's holiday-pay hours to be calculated based on the 12- week period immediately before the leave began. In Boboescu's case, this meant she was entitled to holiday pay of 7.18 hours per paycheque, based on an average of 71.8 hours per pay period and her sick-leave bank. On her first pay period of sick leave, Boboescu was paid the proper amount. However, the fol- lowing pay period, May 28, she was paid for only 62.5 hours. Bo- boescu informed the payroll rep- resentative, who told her the mis- take would be rectified on the next cheque. On the next pay period, Bob- oescu was also short-changed but she said she didn't bring it up with the employer as she was focused on her health. On the June 25 pay cheque, Boboescu was paid for the May shortfall, but her overall hours were too short and 7.18 hours were removed from her pay. When she informed the payroll department, Boboescu was told she wasn't eligible for Victoria Day or Canada Day holiday pay. Further corrections and de- ductions were made but again on a September cheque, 7.18 hours were deducted for Labour Day. Upon her return from sick leave, and after looking over her pay stubs, Boboescu and the Ca- nadian Union of Public Employ- ees (CUPE), Local 1655 filed a grievance on Oct. 20 and asked for Boboescu to be compensated for the four holidays she wasn't paid for (Victoria Day, Canada Day, New Brunswick Day and Labour Day). The union argued that nowhere in the collective agreement did it say employees were not entitled to receive holiday pay while on sick leave. The employer countered and said it was long-standing practice to not pay employees hol- iday pay while they were on sick leave. Arbitrator Michel Doucet agreed with the union and he or- dered Canadian Blood Services to pay Boboescu four days of holiday pay at 7.18 hours per day. "The employer, for its part, sug- gested in its closing arguments that whatever the interpretation of article 21.09, there was evi- dence of past practice supporting its position that statutory holi- days should be deducted from the amount obtained after having ap- plied the formula of article 21.09," said Doucet. "The evidence on which the employer based its argument of past practice is the evidence of both witnesses of the union where they stated, on cross-examina- tion, that they had no knowledge of the employer having interpret- ed the provision in a different way in the past. I do not believe that this is sufficient evidence to estab- lish a past practice and I will also not deal with this argument," said Doucet. By making the deductions, the employer was incorrectly inter- preting the agreement, according to the arbitrator. "Nowhere in that formula is it stated that a statutory holiday must be deducted from the 'aver- age.' Therefore, having considered the plain language used by the parties as well as the whole agree- ment, I see no reason for con- cluding that deducting statutory holidays was within the common intention of the parties when they agreed to the formula in article 21.09. If it had been they would have clearly said so." Reference: Canadian Blood Services and Canadian Union of Public Employees, Local 1655. Michel Doucet — arbitrator. Christopher Stewart for the employer. Michael Davidson for the employee. Oct. 9, 2018. 2018 CarswellNB 400 Employer incorrectly deducted holiday pay from employee < Sick leave pg. 1

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