Canadian Labour Reporter

7 Canadian HR Reporter, a Thomson Reuters business 2019 CANADIAN LABOUR REPORTER ARBITRATION AWARDS request to be transferred to a department that would accom- modate those beliefs, leading to the eventual CopLogic position. While the service looked for a suitable position, Papouches worked file-management duties for the watch commander's office. During this time, she was paid at the constable rate. However, when Papouches was transferred to the CopLogic department, the new position in- cluded a demotion and $20,000 less per year in salary. She was paid at the constable rate at first, but on Jan. 18, 2016, Papouches received a letter from the dep- uty chief that said, as of Feb. 1, she would be moved to a special constable position, which entailed the lower salary and rank. On Feb. 4, Papouches and the Saskatoon Police Association filed a grievance. Papouches was returned to the constable rank on Jan. 1, 2017, as a special events coordinator, but in the interim she estimated a loss of $18,000 in salary. The grievance also asked for an extra $5,000 for "loss of feeling, dignity or self-respect as a result of the discrimination." Complicating the matter was the fact that both the union and employer hadn't come to a written deal in the collective agreement about how employees in the Cop- Logic department were to be paid. Arbitrator Daniel Ish (backed by fellow board members Shelley Ballard and Bernie Eiswirth) up- held the grievance. "(Papouches) is entitled as a remedy to payment of all lost wages as a result of the transfer to the special constable position, without loss of seniority or benefits. We make no ruling with respect to other human rights damages as requested by the union." Even though the employer argued that employees in the Cop- Logic department were supposed to be ranked as special constable, past practice showed that it was often staffed by officers in the constable rank. "In our opinion, it would have been reasonable for the employer to leave her in the CopLogic pos- ition at her constable rank and salary even though, in the future, circumstances may cause that de- cision to be revisited," said Ish. As well, the police department said by continuing to pay Pa- pouches at the constable rate for lesser-rated work, it would face undue hardship. But, said Ish, "the history of the CopLogic division and its staff- ing causes us to conclude that a reasonable accommodation for (Papouches), which would not impose undue hardship on the employer, was to continue to em- ploy her in the CopLogic position but as a constable, rather than as a special constable (a lower rank with a lower salary)." Reference: Saskatoon Board of Police Commissioners and Saskatoon Police Association. Daniel Ish — arbitrator. Rob Gibbings for the employer. Gary Bainbridge for the employee. Dec. 3, 2018. an apprenticeship opportunity is encouraged to work in the jour- neyperson position for a mini- mum of four years as a return-to- service commitment. Should the employee bid out or voluntarily leave the company within the four years, the employee's obligation for repayment of all costs, wages topped up by the company while at school, out-of-town expenses, etc., will be reimbursed by the employee." If an employee were to leave before one year, the employee was ordered to pay 100 per cent of the education costs. For the next four years, the reimbursement costs were to be repaid on a sliding scale from 75 per cent down to 25 per cent, if the employee left after serving three years. Ochitwa passed the initial test for apprentice training (known as the Conifer test) on Feb. 12, 2009. Around the same time, the union and the employer were negotiating a new collective agreement. The union sent an email to employees updating some of the proposed new terms. "The company has agreed that existing apprentices are not sub- ject to the 'loyalty clause,' only new apprentices coming into the program after March 1, 2010. Also, there is a change in that ap- prentices who stay on with Tolko after completion of their program reduce their payback on a year- to-year basis. While this doesn't affect too many people, it is better than the 'final offer.' The agreement was eventually signed and the loyalty clause was included. On Aug. 9, 2010, Ochitwa suc- cessfully bid into a millwright ap- prentice position. A form from the province of Alberta Apprenticeship Applica- tion and Contract was submitted by Julie Clarke, HR coordinator, and it gave Sept. 20, 2010, as the date Ochitwa would begin his apprenticeship. But on April 28, 2015, Ochitwa informed Tolko that he wished to seek other employment. He spoke with Corey Murphy, new HR co- ordinator, and asked if he had to repay apprentice-training costs if he found a new job. Murphy told Ochitwa that he would not have to repay training costs if he left. On April 27, 2016, Ochitwa gave his notice to leave. The em- ployer wrote to Ochitwa and said he was liable for $31,753.47 of his costs to be refunded. Ochit- wa resigned and on May 3, he responded to the repayment re- quest: "The apprenticeship coor- dinator (Murphy) told me that the repayment did not apply to me." The United Steelwork- ers (USW), Local 1-207, filed a grievance but it was dropped. The employer filed a grievance on July 1, in response. The USW argued that because Ochitwa first passed his Conifer test in 2009, he should have been grandfathered into the 2010 agreement. Arbitrator Robert Abells dis- agreed. "I find it is fair and just that Ochitwa be required to meet his obligations and I order him to pay to the employer the sum of $31,753.47 plus interest." Murphy's response to Ochitwa was incorrect, said Abells, and "the employer ought to have properly briefed Murphy as to the operation of section 8 of the ap- prenticeship agreement. I agree Murphy should have sought clarification from more senior management before mistakenly informing Ochitwa that he would be free of any obligation if he were to quit. Nevertheless, these facts alone, and in the context of the surrounding circumstances, do not make it unfair for the employ- er to enforce its rights." "Difficult as it may have been on April 25, 2016, when he learned of the employer's claim for Ochitwa to change course, in my view, he could have and should have taken steps to remain in the employ of Tolko for another three years so as to satisfy his legal obli- gations," said Abells. Reference: Tolko Industries and United Steelworkers, Local 1-207. Robert Abells — arbitrator. Michael Kilgallin for the employer. David Mercer for the employee. Oct. 19, 2018. 2018 CarswellAlta 2346 Millwright believed he was grandfathered into previous deal < Training costs pg. 1 < Discrimination pg. 1 Constable ranking should have been maintained: Arbitrator

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