Canadian Labour Reporter

February 18, 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 18, 2019 ARBITRATION AWARDS 8 On May 13, 2016, Ford received a disciplinary letter written by admistrator Tara Deveau. This was after a May 10 meeting in which "several concerns with inappro- priate behaviour including gossip, lying, making false accusations to- wards others, and making assump- tions about others that are not correct," were made against Ford. Ford was given a three-day suspension. Later in November, there were three incidents between Ford and Paris. Each of the incidents took place in the dining area, testified Paris, including one time when Ford spoke with "roughness or gruffness" to Paris while serving a meal to a resident. During a Nov. 22 meeting between Paris, Ford and three supervisors, "you could feel the tension, it was a personality con- flict," said Louise Riley, who was at the meeting. Nothing was resolved but Riley suggested the pair enter workplace mediation, which was organized by the provincial labour and education ministry. But Paris filed a formal com- plaint with the employer, on Dec. 14, which ended any potential mediation efforts. Paris filled out a form and said she received "constant, unwarranted, ostraciz- ing and improper conduct when working with Ford." On Jan. 10, 2017, Ford and the Canadian Union of Public Employees (CUPE), Local 1259 filed a grievance. "The employer has not created a harassment-free and safe working place for me. The employer did not properly investigate harassment com- plaints against me in my work- place in a fair manner," she wrote. After an investigation, White- hills issued a four-day suspension to Ford and a one-day suspension to Paris. Ford went off work on April 24 on long-term disability (LTD) due to stress from "constant harass- ment and bullying and discrimin- ation." The employer countered and said all complaints were dealt with and there were no griev- ances filed against the previous suspensions. Whitehills said the reason Ford went on LTD was be- cause she did not agree to change shifts so the two employees wouldn't work together because Ford would have been moved to an evening shift. Arbitrator Augustus Richard- son threw out the grievance. "Their working relation- ship appears to have gotten off on the wrong foot when Paris asked the grievor for a kiss. It never recovered, notwithstand- ing Paris's subsequent apology. They squabbled over whether or how they were performing their respective job duties when they were required to work together on the same shift. The friction became so bad that each at one point levelled formal complaints of harassment against the other. And they each rejected oppor- tunities to resolve their per- sonality conflicts: The grievor, when she failed to accept Paris's apology; Paris, when she scuttled mediation by filing a formal com- plaint against the grievor." The blame for the hard feelings should be given to both employ- ees, said Richardson, and not the employer. "The employer's decision to discipline Paris is evidence that the employer was not happy with her conduct, and was attempt- ing to encourage her to be more professional in her relations with (Ford). In other words, the em- ployer did not ignore the grievor's position that Paris was the one causing a problem. It was just not persuaded that Paris was the only one responsible for the conflict that had developed in its work- place." Reference: Whitehills Long Term Care Centre and Canadian Union of Public Employees, Local 1259. Augustus Richardson — arbitrator. Noella Martin, Nicole Heelan for the employer. Todd MacPherson for the employee. Dec. 21, 2018. 2018 CarswellNS 1013 By March 1, 2017, Mahan had used up all her sick days and she wrote a letter to the school board that said she would be accessing short-term leave and disability plan (STLDP) leave. As the STLDP only paid 90 per cent for its duration, Mahon ad- vised the District School Board Ontario North East that she want- ed to use sick-leave credits from the 2015, 2016 academic year when she was off. However, payroll clerk Kelly Jacques sent an email to Mahon that explained that because Ma- hon didn't work at all during the 2015, 2016 academic year, she was not eligible to receive a sick-leave bank of 11 days. (Unused sick days were banked by union members but the only reason they could be accessed was to top up the STLDP leave pay of 90 per cent.) Mahon and the union, the El- ementary Teachers' Federation of Ontario (ETFO), grieved the board's denial and asked to be compensated $135.63. Enrica McGillis, manager of payroll and benefits, testified the school board's policies allowed teachers to be credited with the 11 sick days for the academic year, but only if they actually worked during the year, said McGillis. The union argued that because Mahon took the academic year off for her pregnancy and she wasn't given the sick-leave credits, the school board discriminated. But the board countered and said that according to the lan- guage of the collective agreement in article C7, when an employee wanted to use the sick days to top up STLDP leave, the board would look back at the teacher's last year worked, which was 2014-2015 and Mahon used up all her 11 sick days that year. Arbitrator Gail Misra agreed and dismissed the grievance. "I cannot find that the federation has made out a prima facie case of discrimination on the bases of sex and pregnancy in this case. In any event, I find that the applica- tion of article C7e) to women on pregnancy leave does not breach the prohibitions against dis- crimination on the basis of sex or pregnancy in either the collective agreement or the Human Rights Code." The board did not discriminate against Mahon, said the arbitrator. "It is agnostic on whether the teacher who is off work in the pre- vious year is male or female, and indeed the evidence is that both men and women who were off work, for either some combina- tion of pregnancy leave, parental leave and child-care leave, or a general leave without pay, were all treated in the same manner. While they would all have received an allocation of 11 sick leave days in September of the academic year that they were off, when they re- turned to work, the board looked back at their last year worked, and allocated to them for their STLDP top-up bank any of the 11 sick leave days they had remaining from their last year worked." When Mahon was off, she used 17 weeks of pregnancy leave and the rest via parental leave, which meant she missed the entire year, said Misra. "It is only when pregnancy leave is taken in conjunction with the full 35 weeks of parental leave (which is available to both men and women), and when those total weeks span a full academic year, that the female teacher loses the ability to carry forward sick days from the year she did not work. The choice of who will take some or all of the legally available paren- tal leave is that of each family. It is not a sex-driven matter." Reference: District School Board Ontario North East and Elementary Teachers' Federation of Ontario. Gail Misra — arbitrator. Timothy Liznick for the employer. Kate Hughes for the employee. Jan. 28, 2019. 2019 CarswellOnt 1213 Sick-days credit only given after working complete year < Pregnancy pg. 1 < Harassment pg. 1 Coworker's relationship started 'on wrong foot': Arbitrator

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