Canadian Labour Reporter

July 29, 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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7 Canadian HR Reporter, a HAB Press business 2019 CANADIAN LABOUR REPORTER ARBITRATION AWARDS manner when it eliminated Eb- sary's position and required the new candidate to have the Red Seal designation. However, Aramark promised it would help Ebsary gain the desig- nation if she wanted it. After the competition, Ebsary was hired into a part-time posi- tion with 25 hours of work per week. NAPE argued that Ebsary had spent many years working in the bakery, including a stint as lead- hand for one year when she super- vised Power; this more than quali- fied her to be awarded the cook 2 position, it said. But the cafeteria needed a more senior person who could also work in the catering depart- ment at times, according to Bar- bara Henshaw, food service direc- tor, and Ebsary never did work in any other departments, unlike Power. Power's work in the bakery was noticed by students, who provid- ed much positive feedback, said the employer. Arbitrator James Oakley dis- missed the grievance. "The employer exercised man- agement rights in a manner that was not unreasonable, arbitrary or in bad faith when it created and posted the cook 2 position and eliminated the baker 1 position in the bakery. The employer did not violate the collective agreement when it posted for the position of cook 2 in the bakery and selected Scott Power for the position." NAPE also grieved that the posting was not given to the union in a timely manner, but that was rejected by the arbitrator. "It was not established that the employer supplied a copy to the local secretary. However, this failure was not a flaw in the job competition that would justify the cancellation of the job competi- tion, the reposting of the position and a new job competition. (Eb- sary) was aware of the job post- ing and applied on the posting. It is not alleged that anyone failed to apply on the job posting be- cause they did not have notice of the posting. Therefore, any viola- tion of article 15.01 had no effect on (Ebsary's) application for the position, would not be grounds to repost the position on the facts of the case, and would not justify the redress requested by the union to restore the baker 1 position or alternatively to repost the cook 2 position," says Oakley. Despite the contention by NAPE that the position was cre- ated specifically for Power, this allegation was also dismissed by Oakley. "Power testified that the ex- ecutive chef told him this was the employer's intent. However, there was contradictory testimony from the food services director that the position was posted and open to any applicant and that employees senior to Power could have ap- plied for the position. The posi- tion of cook 2 was posted and any member of the bargaining unit could have applied for the posi- tion. It was not demonstrated that the competition process was arbi- trary or in bad faith. There were qualified persons with greater seniority than Power who could have applied for the position but did not apply." Reference: Aramark Canada at Memorial University and Newfoundland and Labrador Association of Public and Private Employees. James Oakley — arbitrator. Harold Smith for the employer. Christina Kennedy for the employee. March 19, 2019. 2019 CarswellNfld 177 the program as a result of the charges. As a resident, Chauhan was both a student and an em- ployee of the Hamilton Health Sci- ences Corporation and St. Joseph's Health System. Residents were covered by the Professional As- sociation of Residents of Ontario (PARO) union. On Sept. 25, 2014, he was found not guilty on all charges. On May 1, 2015, he applied to the College of Physicians and Surgeons of On- tario (CPSO) for reinstatement but on Oct. 8, the request was denied. Without the registration, Chauhan wasn't eligible to work at the university or the hospitals. He appealed to the Health Pro- fessions Appeal and Review Board (HPARB) and on July 12, 2017 he was reinstated. McMaster then ordered Pro- tect International Risk and Safety Services to review Chauhan's case and found in a report "there is no evidence (Chauhan) has taken steps to reassure the administra- tion and other members of the Department of Surgery, School of Medicine, or McMaster Univer- sity that he does not pose a risk for encountering similar problems again." Chauhan's history of "prob- lematic sexual behaviour… raises reasonable and serious questions regarding his judgment, attitudes and insight." However, another report done by psychiatrist Graham Glancy found that Chauhan "has learnt from the circumstances that pre- disposed him to the allegations resulting in his criminal charges. He has had a significant amount of time to think about the situation and discuss things with his wife. He has since made an adjustment to his lifestyle that minimizes any risk or repetition of such allega- tions." A joint committee of the hospi- tals found that Chauhan's conduct toward one of the women, who was a fellow student looking for advice, was "unprofessional and unethical," especially considering Chauhan's status as a mentor to her. Chauhan's request for rein- statement was denied and on June 25, 2018, PARO grieved it and says he should be reinstated by the hospitals and given back pay. However, the hospitals coun- tered and says the residency could not be restarted due to it originally being five years long and time hav- ing passed due to the six-and-a- half-year break. Arbitrator William Kaplan (backed by fellow board mem- bers Joshua Tepper and Michael Wright Member) concluded that "the case must be decided on a just-cause standard and that the hospitals' argument that the inter- rupted residency has come to an end and cannot be restarted must be dismissed." "Without doubt, in normal circumstances, the plastic sur- gery residency is five years. Quite clearly, medical residents are not employed indefinitely. And it is more likely than not that but for the events described in this award, Dr. Chauhan would have com- pleted his residency in the allot- ted time. Obviously, that proved impossible, but interruptions are not unheard of," says Kaplan. "The existence of a lengthy interrup- tion — even if the reasons for it are far from salutary — cannot be an automatic barrier to resumption, particularly where the collective agreement contemplates various leaves and provides for the reset- ting of the residency clock." But Chauhan was not immedi- ately ordered back to the program by the board. "Whether reinstate- ment, or some other outcome, the parties are to be first afforded the opportunity to agree, failing which, the matter may be brought back before us. We direct PARO and the hospitals to meet as soon as practicable in order to begin their discussions with the view to reaching agreement on an appro- priate remedy," says Kaplan. Reference: Hamilton Health Sciences Corporation and St. Joseph's Health System and Professional Association of Residents of Ontario. William Kaplan — arbitrator. Glenn Christie for the employer. Derrick McIntosh for the employee. June 20, 2019. 2019 CarswellOnt 9798 Interruption not valid reason to terminate residency < Absence pg. 1 < Job description pg. 1 Not notifying union not enough to repost: arbitrator

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