Canadian Labour Reporter

7 Canadian HR Reporter, a Thomson Reuters business 2019 CANADIAN LABOUR REPORTER ARBITRATION AWARDS the purpose of giving them a raise in pay, these employees were not always qualified to be placed into the new classification. The employer also wanted a better way to recognize an em- ployee's excellent performance, so both parties discussed various ways to achieve the goal with the new collective agreement. Talks began on Aug. 20, 2015, and both sides met five or six times Eventually, the sides agreed to fewer job classifications as a reflection of ongoing business challenges, which brought on layoffs of both management and union members. On Sept. 21, the union pro- posed an amendment "that no employee who is working for the company as of the date of ratifi- cation of this agreement will have his regular rate of pay reduced as a result of this restructuring of the classification of wage table." As well, the union said it want- ed current employees to have their wage levels "grandfathered" into the new contract. However, Empire didn't sign off on this proposal and the talks about the wage rates being re- duced eventually "fell by the way- side," according to Bill Mercer, business manager for the union. On Nov. 14, the collective agreement was ratified. The following year, on Jan. 8, 2016, Andy Boelee, who was part of the management negotiating team, emailed Mercer with an up- dated list of employees and their new classifications. "If any employee has concerns about where they are classified, or feel they should be classified high- er than what we have them at, we can review this on a case-by-case basis. We can set up a committee with peers and management to arbitrate," wrote Boelee. Mercer or anyone else in the union didn't respond to this email. In April and May 2016, many laid-off workers were recalled and were asked to sign a document that outlined their new rates of pay. As word filtered out that many workers were receiving lesser rates, the union filed a grievance and argued that Empire had no right to unilaterally reclassify the employees and pay them less. The employer argued the em- ployees affected were placed into the proper categories (to address the past practice of bumping em- ployees into improper classes) and, therefore, they were being paid what they were worth. As well, said Empire, all of the affected employees met with management and signed a paper agreeing to the new rates, before being brought back onboard. In denying the grievance, arbi- trator Francis Price said, "I am satisfied from the evidence that the employer did not unilateral- ly reclassify any employees. The reclassification of employees was done pursuant to the jointly negotiated, agreed-upon appen- dices A and B to the new collect- ive agreement… that was jointly recommended to the members of the union, then approved by the majority of members on the second vote, and ultimately rati- fied as the 2015-2018 collective agreement." The blame was placed on the union when it failed to reply to Boelee's email, according to Price. "There was no response by the union to the list of employ- ees and their proposed new classification and hourly wage that Andy Boelee had sent to Bill Mercer on Jan. 8, 2016. And, therefore it is not appropriate to use the grievance process to resolve problems caused by poor negotiation of the collect- ive agreement. The remedy in these circumstances can only be to renegotiate the issue at a future round of collective bargaining." Reference: Empire Iron Works and Shopmen's Local 805 of the International Association of Bridge, Structural, Orna- mental and Reinforcing Iron Workers. Francis Price — arbitrator. Jonathan McCully for the employer. Drew Blaikie for the employees. Nov. 16, 2018. 2018 CarswellAlta 2748 In December 2014, BF began work on a project to update the payroll system to a computerized process. Colleen Parker was his supervisor and another colleague was also on the team. During the change, BF re- ceived a new classification of level 10-technical, but he believed that he would have been better placed into the level 10-market supple- ment position, which came with a higher pay grade. His request to change was de- nied and during the review pro- cess, BF was downgraded to a level nine position, although he was red-circled and didn't achieve a pay downgrade. BF then filed a grievance but withdrew it. "I didn't have the mental energy to pursue it," he testified. In May and June 2016, Parker noticed that BF's work perform- ance began to suffer. "Unfortunately, at this time, there are some gaps between his level of knowledge and the results he is achieving," wrote Parker in a November performance review document. BF asked for an unscheduled week off and he went on a vaca- tion. Parker was transferred to an- other department during this time and she contacted BF while he was on vacation about the change, but BF said he was frustrated to be contacted while on vacation. In December, he was placed on the PIP. On Dec. 12, BF went to see his doctor, who provided a note say- ing BF would be taking sick leave to Jan. 9, 2017, for "medical rea- sons." After another note arrived from the doctor extending the leave for a further three weeks, the employer denied sick pay and place BF on unpaid leave. On Feb. 2, 2017, the Saskatch- ewan Government Employees Union (SGEU) filed a grievance. On April 24, a second grievance was filed after BF was termin- ated. Between the first leave and May 13, BF's doctors continued to pro- vide sick notes extending the ab- sence. On the final one, he wrote: "Medical reason — work-induced medical problem," while the other six notes all said simply "medical reasons." BF's doctor testified that he ad- vised HRSC that the main reason for his sick leave was stress due to work conditions and unless they changed, BF could not return to work. BF's counsellor also testified that he had been seeing her since October 2016 about continued stress due to his job. Arbitrator Allen Ponak upheld both grievances and found BF should be given his sick leave pay. "It is my finding that the doctor was uncontradicted in his opinion that (BF) was not fit to work at his job in the HRSC between Dec. 13, 2016, and at least May 13, 2017. He said so repeatedly on the sick slips, he said so in more detail on the three forms that he complet- ed, and he reiterated his opinion in his oral testimony." As well, said Ponak, "efforts must be made forthwith to enable (BF) to return to work in his pre- vious position in the HRSC or, if that position no longer exists, to find a position at the same (level 10) classification that is commen- surate with his skills and experi- ence." "Alternatively, the employer, union, and (BF) may mutually agree on an alternative accept- able placement. Because of the length of time that has passed, and to protect the interests of both (BF) and the employer, prior to his return to work (BF) must be declared fit for duty by a medical professional mutually agreed to by the union and employer," said Ponak. Reference: Human Resources Service Centre and Saskatchewan Government Employees Union. Allen Ponak — arbitrator. Robert Winter for the employer. Larry Buchinski for the employees. Nov. 14, 2018. 2018 CarswellSask 538 < Sick leave pg. 1 Union representative didn't respond to employer's email < Ironworkers pg. 1

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