Canadian Labour Reporter

May 13, 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 HAB Press business 2019 May 13, 2019 ARBITRATION AWARDS employee and to deduct union dues. "Levin is not an employee of the university," said an April 28 letter in response. "In a three-party contract for services, he has agreed to carry out his work in affiliation with the College of Medicine and the Sas- katoon Health Region as an inde- pendent contractor." The association grieved this response on May 3. The university argued that no provisions exist in the collective agreement that prohibit contract- ing out and it was well within its rights to do so when it hired Levin as an independent contractor. USFA countered and said a memorandum of understanding that said the "employer agrees that when establishing academic positions funded from sources other than the university operat- ing budget, that the terms and conditions of the 2007 to 2009 collective agreement… shall ap- ply in its entirety to such appoint- ments," which it said meant that Levin worked in an academic position and, therefore, he was an employee. However, arbitrator Andrew Sims ruled that Levin's exclusive contact language precluded him from being part of the bargaining unit. "Levin is aptly described as 'a unicorn;' an unique appointee who has taken on unique chal- lenges in terms of his research and in terms of assisting the health- care system meet the challenge of multiple sclerosis. A major factor distinguishing Levin from other faculty members, and other re- search chairs, is this commitment to not only the university but to the objectives of what was the health region and is now the pro- vincial health authority." Levin's commitment to the provincial health system (which called for him to spend 20 per cent of his time as a clinician), made him a product of two masters, said Sims. "By providing the type of clini- cal services he has contracted to provide, and by being located in the Saskatoon City Hospital, he is also to a significant degree in- tegrated into the hospital and the health-care system. He is a key actor in the provision of clinical care for MS patients through- out the province and plays a role in educating other health-care professionals involved in MS treatment. His feet are not firmly in one enterprise or the other." In the end, the association failed to establish Levin was an employee, he said. "Having weighed the various factors, my conclusion is that Levin is an independent contrac- tor and not an employee for the purposes of this bargaining rela- tionship. That is what his contract and his appointment says, and while form cannot prevail over substance, I find the substantive terms in his contract overall sup- port its form. None of the evi- dence presented shows this to be a sham or self-declared mechanism to avoid collective agreement ob- ligations," said Sims. Reference: University of Saskatchewan and University of Saskatchewan Faculty Association. Andrew Sims — arbitrator. John Beckman, Amelia Lowe-Muller for the employer. Gary Bainbridge for the employee. Feb. 6, 2019. spelled out terms of employment: "A valid B.C. driver's licence and access to a vehicle is a require- ment of this position." In response to the letter, Soares emailed Hazel Braithwaite, di- rector of community campaigns, later that day and said, "As I had mentioned earlier, I have an in- ternational driver's licence which is valid in Canada for a year but I will immediately apply for my B.C. drivers' licence as well. Also, my husband and I are in the process of getting a car and hopefully I should have one within one or two weeks." On March 21, Soares attempt- ed the provincial driving test but she failed. When she arrived at the office, Soares was told her in- ternational licence was no longer valid. Soares asked Braithwaite if she could have her husband drive her around while at work or could she also use a taxi until she was able to pass the driving test. Soares was told yes, but she was told that this arrangement wasn't feasible for the long term. On April 23, Soares was given a favourable evaluation but no mention was made about her failure to secure a licence. Soares was reminded repeat- edly about the need to obtain the licence, testified Braithwaite. Soares responded that she was nervous about passing the test and she needed driving lessons. As the probationary period neared its end, Soares was ad- vised by a Canadian Union of Public Employees (CUPE), Local 50 shop steward that the licence requirement was not recognized by the union. In a July 9 email, local president John Burrows warned the em- ployer that "if the employer takes the position that Soares fails in her probationary period due to the lack of a valid B.C. driver's licence, we will have no choice but to file a grievance." Soares remained unlicenced and on July 18, her employment was terminated. CUPE filed a grievance on July 24 that alleged unjust termination. It also said that the requirement for a driver's licence was never approved by the union. The employer disagreed and produced a 2015 job-description letter to the union that called for a licence, as well as a 2017 job description that was also sent to CUPE. The union also argued that the United Way didn't properly warn Soares via the discipline process about the licence requirement. Arbitrator Ken Saunders disagreed and dismissed the grievance. "(Soares) testified she did not 'absolutely know' she needed her licence until about two-and-a- half weeks before her dismissal. I accept (Soares) was confused about whether the union or the employer was ultimately behind the licence requirement," said Saunders. "However, the contention that (Soares) was not adequately noti- fied does not fit with the whole of her testimony and the circum- stances at hand. In cross-examin- ation, (Soares) testified she knew her job required a valid licence be- fore she was hired. She knew that continuing to have her husband drive her to appointments, using taxis or using public transit was not a realistic long-term solution. Further, (Soares) continued her efforts to obtain a licence, includ- ing lessons. I find in the circum- stances, that (Soares) adequately understood what was expected. She was simply unable to deliver," said Saunders. Reference: United Way of Greater Victoria and Canadian Union of Public Employees, Local 50. Ken Saunders — arbitrator. Gregory Heywood for the employer. Susan Jansen for the employee. Feb. 13, 2019. 2019 CarswellBC 661 Employee warned repeatedly about licensing requirement < Licensed pg. 1 < Professor pg. 1 MS educator 'aptly described as a unicorn': Arbitrator 'Levin is an independent contractor and not an employee'

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