Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2019 February 4, 2019 ARBITRATION AWARDS 8 The benefits plan took longer to finalize and the employer in- tended for it to be done by Decem- ber 2009. During collective bargaining, the employer indicated it wanted ways to cover "lifestyle drugs" for employees, testified Adrien Graci, HR director. Eventually, in April 2010, the collective agreement was signed and it included all existing bene- fits levels and a $750-per-year health spending account. However, the Sun Life book- let for the plan said it would not cover "drugs for the treatment of sexual dysfunction," but the health account would cover the costs. Rob Foskett, welder and a mem- ber of the union bargaining team, testified that he knew of previ- ous employees being covered for Viagra under the former plan and he believed it was still covered under the current agreement. In August 2017, Gibson re- ceived a note from the benefit provider after he submitted the Viagra claim: "We are unable to pay this expense because it is not covered under your plan." Gibson used his health-spend- ing money to cover the costs, but said he would rather not use that money on coverage for Viagra. On Dec. 19, 2017, Gibson and the International Union of Operating Engineers (IUOE), Local 115 filed a grievance. "A number of employees have been denied prescriptions due to the drug not being included in the company's insurance package; however, the CBA clearly states that the only prescriptions not covered are for oral contracep- tives and that drugs which legally require a written prescription are covered to 80 per cent," wrote Gibson. The union argued the employ- er broke the collective agreement, according to article 19(a): "At no time will coverage be less than that currently in place as indicated in appendix C." SMS argued that because of the talk regarding lifestyle drugs dur- ing collective bargaining, it was clear that certain drugs would not be covered if they fell under that rubric. But arbitrator James Dorsey disagreed: "The employer is or- dered to reimburse Gibson for 80 per cent of the cost of all his Viagra prescriptions." "Whether the denial of Gib- son's claim was because Viagra is a drug for the treatment of sexual dysfunction or because Viagra is not considered medically neces- sary for the treatment of an illness or for any other reason, the em- ployer has underinsured for an agreed benefit and is liable to pro- vide the benefit," said Dorsey. The employer's argument about lifestyle drugs was given little credence by Dorsey. "The agreed benefit in place as indicated in Appendix C is clear and specific. It is all 'drugs which legally require a written prescrip- tion' except oral contraceptives. It is not a limited subset of all legally prescribed drugs that are 'med- ically necessary' or 'medically necessary for the treatment of an illness' or that are not 'lifestyle' drugs." "There is express agreement the employer may provide cover- age for benefits through an in- surance policy. It is implicit that policy must provide the benefits agreed in the collective agreement," said Dorsey. "Although it is expressly agreed the insurance coverage may con- tain 'restrictions, exceptions, qualifications, and other terms af- fecting entitlement,' questions of 'entitlement and eligibility' are to be determined first by the terms of the collective agreement and only secondly by the terms of the insur- ance contract," said Dorsey. Reference: SMS Equipment and International Union of Operating Engineers, Local 115. James Dorsey — arbitrator. Vincent Johnston for the employer. John MacTavish for the employee. Jan. 11, 2019. 2019 CarswellBC 55 seven years, but he returned to work full-time on Feb. 8, 2016. In March 2016, Arseneau met with Devan Corrigan, HR man- ager, to see if he could qualify for early retirement, but he was told he wasn't eligible. The employer had an attend- ance-management policy (AMP) that was monitored by Barbara Russell, labour relations coordin- ator. On July 13, Russell met with Arseneau and he was placed into the AMP at stage one for being absent for 80 per cent of time be- tween April and June. On Oct. 31, after missing 10 per cent of his scheduled time, he was placed into step two of the AMP. Finally, on Jan. 10, 2017, Arse- neau entered step three after missing 17 per cent of his shifts. A last-chance agreement was prepared on Dec. 6, after Arse- neau missed more time, but the letter was not signed by Arse- neau or the United Steelworkers (USW), Local 7085, representa- tive who was at the meeting. In April 2017, Arseneau again spoke with Corrigan and advised him that he was facing crimin- al charges and there was a trial scheduled for the fall. Another meeting was held on Oct. 25, and Arseneau told the employer that he plead guilty to two counts and would probably be receiving a jail sentence, most likely in January 2018. He handed a letter to Corrigan but it wasn't read until after the meeting. The letter was written by Arse- neau's wife and the issue of early retirement was raised, which was denied again. Arseneau was terminated on April 5 after missing 48 per cent of time during the previous three- month period. During the arbitration, Arse- neau testified that he had been suffering from leg pain and depression, which necessitated his absences. Glencore said that was the first time it heard about such a reason, and there was no medical evidence submitted to back the claim. The union argued that during each of the multiple disciplinary hearings, the employer failed to ask if Arseneau needed accom- modation. Arbitrator George Filliter dis- missed the grievance. "(Arseneau) was unable to meet the attend- ance expectations of the employer as set out in the bilateral AMP and the employer took steps too and no-fault termination was appro- priate." "I find the employer counseled (Arseneau) on five separate oc- casions before deciding to ter- minate him. Each time, the em- ployer reminded him of his rights to accommodation. At no time did (Arseneau) provide any in- formation to the employer or ask for accommodation. In my view, (Arseneau) was made aware of the possible ramifications for his con- tinued absences and did nothing," said Filliter. It was Arseneau's behaviour that sealed his fate, said the arbi- trator. "Furthermore, the evidence of Corrigan was (Arseneau) had on three occasions, in 2016 and 2017, inquired about the possibility of early retirement. During these meetings, the grievor admitted he did not want to be at work ," said Filliter. As well, Arseneau's impending jail sentence meant he would be "incarcerated for four months in jail, which of course would make him unable to attend at work dur- ing this period of time." Reference: Glencore Canada and United Steelworkers, Local 7085. George Filliter — arbitrator. Jessica Bungay for the employer. Euclide Hache for the employee. Nov. 8, 2018. 2018 CarswellNB 462 Last-chance agreement not signed but enforced by employer < Smelter worker pg. 1 < Viagra pg. 1 'Employer has underinsured for agreed benefit': Arbitrator

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