Canadian Labour Reporter

7 Canadian HR Reporter, a HAB Press business 2019 CANADIAN LABOUR REPORTER ARBITRATION AWARDS precise route back to the NVPS area and had to pass through a screening area that was operated by another contactor, G4S secu- rity. After the screening was done, employees were driven to the NVPS area to work their shifts. If anybody, including screening officers, was found smoking on the property, their restricted area identity card would be confiscated and they would have to leave the property immediately and wait for a suspension to be lifted to return to work. Under the Canadian Aviation Regulations, persons were al- lowed to smoke on airport prop- erty but only "located on an apron where such smoking is not likely to create a fire hazard that could endanger persons or property." Halifax airport did not provide any such site for smoking. On Feb. 23, 2017, Burns and the union, the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Ser- vice Workers International Union (USW), Local 5319, filed a griev- ance that she "be able to return to building during shift @ NPVS." The grievance alleged the em- ployer breached the collective agreement and that Burns' hu- man rights were also violated by the airport's no-smoking policy and lack of smoking facilities. It argued that because nicotine de- pendence was an addiction, Burns must be accommodated. Arbitrator Augustus Richard- son disagreed and dismissed the grievance. "There is nothing in the collec- tive agreement expressly requir- ing the employer to provide the remedy sought by the union. That being the case, the union must establish a duty to accommodate what the union says is a disability — an addiction to nicotine. The difficulty here is that there was no evidence establishing, first, that addiction to nicotine was a dis- ability within the meaning of the arbitral jurisprudence; and, sec- ond, that the grievor had any such addiction," said Richardson. Even though the union argued that nicotine addiction was "well- known," it was not proved by any evidence and, as such, it was sim- ply "an assertion," said Richard- son. "An arbitrator cannot act on the basis of assertion alone. In the matter before me, I would have needed evidence from the griev- or and, more importantly, from medical and addiction experts before I could make a finding that the grievor suffered from an ad- diction that triggered the employ- er's duty to accommodate." Burns could have remedied her need to smoke by bidding for a po- sition inside the terminal, which would have allowed her easy ac- cess to the smoking area. "Any such option would have addressed the employee's needs without imposing any — or at least any undue — burden on the employer. Absent good reason, neither the grievor nor the union would have been able to refuse such an accommodation. But here again there was no evidence of any attempt on the part of the grievor or the union to request such an accommodation. Indeed, what evidence there was suggested that the grievor had in fact bid for work at the NPVS facility. To find a breach of a duty to accommodate on such evidence (again, assum- ing the duty had been triggered) would have been to permit the grievor to bootstrap herself into an accommodation where none was necessary," said Richardson. Reference: Securitas Transport Aviation Security and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (USW), Local 5319. Augustus Richardson — arbitrator. Jack Graham for the employer. Michael Clark for the employee. March 29, 2019. 2019 CarswellNS 246 30 and Sept. 3. He told Fowler he would return to work on Sept. 7. Fowler asked Osmond if he would be providing a medical note for the time off but Osmond said it wasn't needed because he was tak- ing off one time (which included two shift-rotations). On Aug. 30, Osmond called platoon chief Brian Tucker to ad- vise him that he would be off on Sept. 3 and that he didn't need to produce a medical note for the ab- sence. Osmond returned to work as promised on Sept. 7. He filled out a leave request form claiming one instance of sick leave. However, he received a let- ter in return asking for a medical certificate for the second leave or he would be deducted 48 hours' pay. Article 13.06 of the collective agreement spelled out the rules for whether or not a note was re- quired: "Sick leave of at least two consecutive instances at any time or in excess of two instances in the aggregate in one calendar year shall not be awarded to an employee unless a valid medical certificate has been submitted to the fire chief/director or deputy fire chief. For the purposes of this clause, an instance shall be de- fined as eight hours or more of sick leave." On Sept. 26, Osmond and the union, the International Associa- tion of Firefighters (IAFF), Local 1075, grieved the denial and asked for a reimbursement of the 48 hours that were deducted from his paycheque. Osmond claimed that his time off should have been one instance because it was consecutive. Jim O'Toole, firefighter and union executive member, testi- fied that in his view as a bargaining committee member, one instance is more than eight hours and has no end date. The former agreement changed the wording from days to instances, he said. The union argued that because there was no definition in the collective agreement specifying the exact meaning of the word instance, there was no limit as to how long a single instance could be. Arbitrator James Oakley (dis- sented by board member Larry Cook and agreed to by board member Geoff Williams) dis- missed the grievance. "Having regard to the princi- ples of interpretation, including consideration of the collective agreement as a whole, the board finds that an 'instance' in article 13.06 means eight hours or more of sick leave within one 24-hour shift for rotating shift employees. Two consecutive instances mean an absence for eight hours or more in two consecutive sched- uled 24-hour shifts," said Oakley. "In order to administer con- secutive instances of sick leave, there would need to be a point in time when one instance ends and then the next consecutive instance starts. If one instance is interpreted to mean a num- ber of consecutive shifts, either an unlimited number of shifts, or with a maximum of four shifts by operation of the disability management policy, then the end of one instance and the start of the next consecutive instance would not be practical to administer." The blame for the missing pay should be focused on Osmond because "under article 13.06 as a result of his absence for two con- secutive instances, he was not entitled to sick leave unless he submitted a medical certificate. (Osmond) did not submit a med- ical certificate, and the employer correctly denied payment of sick leave for the two shifts requested. The employer did not violate the collective agreement," said Oakley. Reference: St. John's Regional Fire Department and International Association of Firefighters (IAFF), Local 1075. James Oakley — arbitrator. Cheryl Mullett for the employer. Ian Patey for the employee. July 12, 2018. 2018 CarswellNfld 404 IAFF, city differed over agreement's definition of 'instance' < Sick pay pg. 1 < Airport screener pg. 1 No evidence 'addiction to nicotine a disability': Arbitrator

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