Canadian Labour Reporter - sample

7 Canadian HR Reporter, a Thomson Reuters business 2019 CANADIAN LABOUR REPORTER ARBITRATION AWARDS At 8 a.m. on Feb. 8, IT employ- ees attempted to retrieve the im- ages but they found that the hist- ory was erased and they couldn't see any incriminating evidence. Later that day, Trainor was asked about the images. He repeatedly denied viewing the images. Trainor testified that he felt the employer didn't have any direct evidence that proved he viewed any sexually explicit images. However, he was sent home later that day, pending further investigation. Raymond said he saw Trainor at the computer a few days before the Feb. 7 incident. Trainor called him over and showed him a meth- od to evade the company's efforts to block certain websites. The im- ages he saw were "disturbing," said Raymond. During a Feb. 15 meeting, Trainor was fired for breaking the company's code of business conduct and ethics for "displaying pornographic material or sexually suggestive objects or pictures in the workplace," which was con- sidered harassment. As well, Trainor's dishonesty during the investigation was cited. The union, Teamsters, Local 987, filed a grievance on Feb. 20. Later, during a Feb. 28 griev- ance hearing, Trainor admitted his wrongdoing. Arbitrator Phyllis Smith dis- missed the grievance. "None of the factors which are normally relied upon in the jurisprudence to substitute a lesser penalty as- sist (Trainor) in this case. But in this case, given the seriousness of the offences and the dishonesty of (Trainor) during the investiga- tion, I am unable to conclude that the employer's decision was un- fair or unjust." Two previous disciplinary notices were also on Trainor's record, which rightly played a part in the decision to terminate, said Smith. Trainor's behaviour during the investigation and afterward did not show much remorse, said the arbitrator. "Furthermore, the step 1 re- sponse after he was terminated and when he wanted to get his job back would not give the em- ployer any confidence that he ap- preciated the seriousness of his wrongdoing or that he sincerely regretted or that they could trust this short-term employee without a clean service record to return to the workplace and behave proper- ly. He had to in fact be prodded by his union to express what little re- gret he had and that regret was not with respect to the effect on the employer but the effect on him," said Smith. And Trainor's own testimony sealed his fate, according to the arbitrator. "He admitted that he simply took a chance after due consideration that he could es- cape any consequences because he thought the employer was bluffing and could not prove its case. This was done in circum- stances where he did not think he could get fired for the offence so he was not overcome by the fear and stress of termination. Rather, he wanted to escape any responsibility. In this case, I am not inclined to discount the fail- ure to admit wrongdoing at the first opportunity as a just basis for termination." Reference: Purolator and Teamsters, Local 987. Phyllis Smith — arbitrator. Gurjit Brar for the employer. Clayton Cook for the employee. Feb. 14, 2019. 2019 CarswellNat 367 letter to electrical maintenance employees Mark Canning and Wayne Downing, advising them of the change. After completing the assign- ment, Canning and Downing claimed overtime for the extra work, as per the collective agree- ment. "Except as provided for in article 19 and clause 15.02 (b), the corporation shall be required to pay premium time for all time worked outside the defined nor- mal workday and work week," ac- cording to article 15 — hours of work. However, the company denied the overtime payment and said it relied upon article 15.08, which read: "Non-shift employees will be given five days written notice when required by the corporation to work a shift schedule (based on a requirement for a 24-hour work schedule). If written notice is not given, the corporation shall pay the employees involved the applicable overtime rates for all hours worked the first two shifts of the schedule." The letter from Day detailed the proposed schedule that called for the two non-shift employees to work midnight to 8 a.m. shifts from March 18 to March 23. In the past, testified Canning, he was paid overtime premium rates for all work outside his regu- lar daily hours of work, which were 8 a.m. to 4 p.m. He claimed for 10 hours per day (the regular eight hours, plus two more for travel time) for six days. The employer rejected the claim and said Canning should have claimed eight hours' regular pay and two hours of overtime for those six days. Brian Tobin worked as the International Brotherhood of Electrical Workers (IBEW), Local 1615 representative and helped the workers file a grievance on April 5, 2016. He testified that he had also been regularly paid overtime for all work outside his regular hours. About five years previously, he said, Tobin worked on a reclam- ation of transformer oil, and he was paid four hours of overtime for each day he worked 8 a.m. to 8 p.m. Tobin's regular hours were also 8 a.m. to 4 p.m. Arbitrator James Oakley up- held the grievance and ordered the employer to "pay the grievors premium rates under article 15.02 (a) for hours worked outside the normal workday in March 2016." "When the employer gives five days' notice to work a shift sched- ule under article 15.08, the notice does not operate as an exception to article 15.02 (a) and premium rates continue to be payable," said Oakley. The company erred in denying the overtime payments because "article 15.08 does not expressly state any effect on the payment of premium rates under article 15.02 (a). The parties may have had dif- ferent interpretations of article 15.08 at the time it was negotiat- ed in 2010, however, the ordinary meaning of the language and the surrounding circumstances sup- ports the union's interpretation," said Oakley. Reference: Newfoundland and Labrador Hydro and International Brotherhood of Electrical Workers, Local 1615. James Oakley — arbitrator. Darren Stratton for the employer. Stuart Morris for the employee. Aug. 9, 2018. 2018 CarswellNfld 449 Agreement article does not cancel effect of another article < Premium pay pg. 1 < Sexual images pg. 1 Worker had to 'prodded' by union to apologize: Arbitrator "Rather, he wanted to escape any responsibility."

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