Canadian Labour Reporter

February 11, 2019

Canadian Labour Reporter is the trusted source of information for labour relations professionals. Published weekly, it features news, details on collective agreements and arbitration summaries to help you stay on top of the changing landscape.

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8 Canadian HR Reporter, a Thomson Reuters business 2019 February 11, 2019 ARBITRATION AWARDS 8 voicemail message left for me on Oct. 18, I had grave concerns about your ability to appropriately discharge your duties. You will remain on your prior approved leave of absence until such time I am convinced that you are safely able to return to work. I strongly encourage you to take advantage of our free and confidential em- ployee assistance program." During this time, Dezainde worked at another nursing home facility from December to July 16, 2017, when she was fired. After she was deemed to have abandoned her position at Rocmaura by not contacting the employer, her job was posted and filled by another employee. In August 2017, Dezainde showed up unannounced at Rocmaura and told Holly Jones, the new director of nursing after Roberts' retirement, that she "loved, loved, loved" working at Rocmaura and wanted to return. Dezainde later dropped off a medical note from a nurse practitioner that stated: "The above patient is able to return to work/school." The unplanned meeting was "distressing" to Jones, who wrote a letter to Dezainde on Sept. 5: "I have since reviewed your file and I see that your leave of absence ended on June 30, 2017. Rocmaura therefore expected you back to work on July 1, 2017. As you know, you did not re- turn to the building until Aug. 3. Rocmaura therefore deemed you to have resigned your position on July 6 pursuant to article 15.03(c) of the collective agreement. Furthermore, I have concerns around your professional and eth- ical judgment and disrespect for myself, your director of nursing, when I learned that you had made several misrepresentations to me on Aug. 3 and such conduct is not consistent with Rocmaura's values and practices." Dezainde and the union, the Canadian Union of Public Em- ployees (CUPE), Local 1603, grieved the dismissal on Dec. 2. The union also argued that Dezainde's education leave was changed to a medical leave after the Oct. 26, 2016, meeting and there was no intention to resign her position. The employer countered and said, according to the collective agreement, in Article 15.03(c), an employee was deemed to have resigned if "absent from work in excess of five working days, with- out notifying the employer." Arbitrator Robert Breen up- held the grievance and ordered Rocmaura to hire back Dezainde but "with zero seniority on the seniority scale." As well, Dezainde must "pro- duce to Rocmaura a medical note confirming that she is medically able to perform the job responsi- bilities of an RA position, prior to any assignment of RA work made to her at Rocmaura," said Breen. Part of the blame for the con- fusion was based on Dezainde's "failings in forthrightness with Jones in her unannounced arrival at Jones' office in August 2017," said Breen, as well as, "Dezainde's failings in memory as to why she plainly felt compelled to produce a summary medical note confirm- ing an ability to return to work/ school." Because the employer filled Dezainde's old position, it would be unfair to bump that employee out, according to Breen. "Further, this arbitrator does not accept that Dezainde can simply rely on continuing failures to notify of any status, and then in August 2017, demand the right to return to work with her full seniority restated," said Breen. Reference: Rocmaura Nursing Home and Canadian Union of Public Employees, Local 1603. Robert Breen — arbitrator. Justin Wies, Geneviève Gagné for the employer. Michael Davidson for the employee. Sept. 17, 2018. was given a layoff notice on Oct. 4, 2016. He was employed as a de- sign technician, but on Oct. 21, he was advised: "We are pleased to offer you employment in the pos- ition of computer-aided design technician, reporting to the de- sign manager. Your starting wage will be $32.59 per hour. Your start date will be Nov. 7, 2016." Despite the new designation, Cull testified he was still doing more than 50 per cent of the tasks of his former position. Maria Van Dijk, who had worked for Serco for 20 years, was paid $1.50 less per hour in her new position compared to her previ- ous job as a grounds maintenance operative. The new position of roads and grounds operative II included all the same duties Van Dijk did in the previous job cat- egory, she said. "Meteorological briefer/ob- server" was the job title of Kerry Rideout, who had worked for Serco for 18 years, but on Oct. 4, he was reclassified as a "meteor- ological observer" and given 48 hours to sign a letter or "this offer becomes void." Rideout's hourly pay was re- duced from $45.21 to $23.86. Kirk Bartlett, formerly a mech- anic lead hand, was moved to a mechanic position also on Oct. 4 but his hourly rate dropped by $1.52. The grieving employees were displaced from their former pos- itions, which no longer applied in some cases, to lower-rated jobs, and some junior employees were bumped out, said Natasha Mc- Lean, site manager. The employ- ees were not reclassified down- ward, she testified. In Rideout's case, for example, weather briefing and forecasting were no longer required by the employer, said McLean. In Cull's case, the two positions of design technician were eliminated and he accepted the lower-rated job, which still existed, she said. Six other employees were also involved in the grievance filed on Nov. 3 by the Public Service Alli- ance of Canada (PSAC), UNDE Local 90125. The employer failed to post the new jobs, which was required under article 18 of the collective agreement, said the union. As well, the 48-hour stipulation was not in article 37.06, according to PSAC, which meant the employ- er also broke the collective agree- ment. Arbitrator James Oakley dis- agreed with the union arguments and dismissed the grievances. "The employer complied with article 37.06 when the grievors were assigned or bumped into lower-rated positions. The pro- cess in article 32.02 to claim a higher rate of pay for a position was not implemented, and it was not established that there was a change in duties or responsibil- ities of a job title listed in appendix A in violation of article 32.02. The grievors did not have their job title reclassified downward, within the meaning of article 27.08. The em- ployer did not violate the collect- ive agreement." "Similarly, in this case, the col- lective agreement does not re- quire the employer to maintain the pay level of employees after they are reassigned to a job title with a lower pay level. The em- ployer reassigned the grievors from their former job title to a new job title. The employer complied with the collective agreement when it paid the grievors the wage rates listed for the job titles in ap- pendix A," said Oakley. Reference: Serco Canada and Public Service Alliance of Canada (PSAC), UNDE Local 90125. James Oakley — arbitrator. Darren Stratton for the employer. Doug Hill for the employee. Sept. 27, 2018. 2018 CarswellNfld 500 Peeved employees not 'reclassified downward': Arbitrator < Air force base pg. 1 < Reinstatement pg. 1 Registered attendant had no intention to resign: CUPE

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