Canadian Labour Reporter

8 Canadian HR Reporter, a HAB Press business 2019 June 17, 2019 ARBITRATION AWARDS Some of these actions were su- pervisory in nature, she said. During closing duties, there was no manager on duty, said Tyacke. A clerk two typically cashed out, placed money into the safe, locked up the cigarette dis- play and lotto tickets areas, set the alarm and locked the store for the night. When clerk one employees per- formed these same functions, said Tyacke, they were paid the pre- mium. However, little difference ex- isted between the duties of a clerk one and a clerk two, according to Tyacke. Darlene McEwan, chief union steward and a clerk two, testified that between 2014 and 2018, she was paid the premium whenever the head cashier was absent. Clerk two employees did not receive the premium because su- pervisory duties were part of the job description and, therefore, not eligible to be considered a premi- um, said Todd Svenson, Beeland general manager. Clerk one workers received the extra pay because supervisory duties were not listed in their job descriptions, he said. Clerk two employees also made more money per hour than clerk one workers, said Svenson. Those employees earned $17.64 after three years, com- pared to $17 per hour for those classified as clerk one. Arbitrator Allen Ponak allowed the grievance. "There is no doubt that many (if not all) of the duties for which clerk twos are requesting a pre- mium under appendix A are included in the clerk two job de- scription. The problem for the employer is that the job descrip- tion was created unilaterally by management and is not part of the collective agreement. The employer has the right to cre- ate job descriptions and there is no requirement that it involve the union or formally link the job descriptions to the collective agreement. However, if there is a conflict between the job descrip- tion and the collective agree- ment, the collective agreement must prevail in the same way that collective agreement language will supersede a unilaterally cre- ated rule or policy," said Ponak. And because an exemption was not written into the agreement, the employer's argument doesn't hold up. "In the current case, the collective agreement specifies that employees who are carrying out supervisory duties receive a premium. The contract does not say that the premium is not ap- plicable if supervision is part of an employee's job description. It was undisputed that clerk twos in the C-store are effectively the 'sec- tion supervisor' when there are no managers on duty. Therefore, they are entitled to the $1-per-hour premium under appendix A," said Ponak. Reference: Beeland Cooperative and Unifor, Local 127. Allen Ponak — arbitrator. Robert Frost-Hinz for the employer. Gary Bainbridge for the employee. May 24, 2019. 2019 CarswellOnt 8314 Broadbent said that sometimes Erdie ended up "touching set-up stuff on the line and adjusting ma- chines" which upset him. Oper- ators had been ordered by the company not to do so, testified Broadbent. After the 4 a.m. break, Broad- bent saw Erdie turning a paddle adjustment and he approached him to tell him to stop. According to Broadbent, Erdie then punched him in the throat, hitting him in the Adam's apple. Broadbent went to the super- visor to report the incident im- mediately after it happened but he did not seek any medical atten- tion. He was sore all week from the hit, said Broadbent. During the shift, testified Erdie, Broadbent didn't seem like himself. When he made the adjustment, Broadbent angrily approached him and began yelling and swearing at him, said Erdie. Broadbent's hands came close to his face during the confronta- tion, said Erdie and he believed that Broadbent might strike him. When he swiped away Broad- bent's hands, that was when his hand hit Broadbent in the throat, testified Erdie. The employer sent Erdie home shortly after the inci- dent. After an investigation, Erdie was dismissed on June 25 for vio- lating the company's violence and harassment in the workplace pre- vention policy. The union, Unifor, Local 127, grieved the decision and argued that because Broadbent acted ag- gressively toward Erdie, his defen- sive actions were justified. Arbitrator Randy Levinson agreed and upheld the grievance. "Erdie is reinstated conditionally to employment without loss of seniority, service or benefits. The period off work from the time of his discharge will be a disciplin- ary suspension without pay. The reinstatement is subject to the following conditions. First, Erdie shall make an unqualified apology in writing to Broadbent. The apology shall include Erdie under- taking not to repeat his behaviour toward Broadbent. Second, if Erd- ie engages in a proven act of vio- lence that contravenes the policy within 24 months of active ser- vice, the company may discharge him, and a proven breach of this condition will be deemed to be discharge for just cause." While Erdie did strike Broad- bent, it was a one-time event, said the arbitrator. "Erdie has reasonable rehabili- tative prospects that warrant re- instatement and that a recurrence of his misconduct is unlikely. His spontaneous reaction to Broad- bent's aggressive behaviour on June 25 was out of character and unprecedented," said Levinson. And MSCC's decision to ter- minate did not fully take in both sides of the conflict, said Levin- son. "Overall, it is apparent that Erdie and Broadbent each lost their composure, as their con- duct toward each other clearly demonstrates. Their mutual loss of composure affected their bet- ter judgment, which explains the spontaneous escalation of events. Significantly, in making its deci- sion about whether to discharge Erdie, it appears the company did not give due regard to how Broad- bent's conduct materially contrib- uted to what occurred." However, it was Erdie's ori- ginal action that precipitated the confrontation. "By adjusting the paddles, Erdie knowingly en- gaged in an activity he should not have undertaken, given previous instruction from the company. Unfortunately, this activity set in motion what was to follow." Reference: MSSC Canada and Unifor, Local 127. Randy Levinson — arbitrator. Mike Byrne for the employee. May 24, 2019. 2019 CarswellOnt 8314 Investigation didn't account for other worker's behaviour < roat pg. 1 < Premium pay pg. 1 Agreement must prevail over job description: Arbitrator "It was undisputed that clerk twos are effectively the 'section supervisor' "

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