Canadian Labour Reporter

August 5, 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 August 5, 2019 ARBITRATION AWARDS customized position for her, and she should be prepared for the "possibility of being whacked by a student or having to chase a child." Eventually, a plan was created due to the makeup of that year's student body but "her inability to perform the full scope/duties set out as an EA poses safety concerns for other employees and the stu- dents she works with," said Amy Yu, HR advisor, in an email. "We will need to consider the permanent accommodation will be in another position in the school district that is more suitable given her permanent medical limita- tions." Broomfield returned to work on Sept. 6, 2016 and complet- ed a full year. However, on March 8, 2017, her doctor advised that Broomfield would need further ac- commodations for a successful re- turn. As well, she missed the 2017 year due to surgery. On Sept. 4, 2018, another grad- uated return-to-work plan was scheduled for Broomfield to begin on a four-day work schedule. The board was firm that she would have to work as an EA and be able to fully handle the duties includ- ing dealing with special needs stu- dents. Eventually, a position was iden- tified but it was for one hour per day and Broomfield declined. "It simply doesn't work for me to drive into West Vancouver to work for one hour a day at Rock- ridge as a lunch-time supervisor." The possibility of clerical work was discussed but Broomfield failed two tests on Microsoft Word and Excel. An attempt was made to access Learning Im- provement Fund (LIF) funding but it was rejected by manage- ment. On Oct. 19, the West Vancou- ver Municipal Employees' Associ- ation (WVMEA) filed a grievance that alleged the employer failed to properly accommodate Broom- field and it asked for damages. But in the meantime, Broom- field agreed to work at a position that mostly met her needs. Arbitrator Dalton Larson ruled against the damages and assigned blame to both sides in the griev- ance. "While I accept that [Broom- field] in this case suffered hard- ship because she was without gainful work, it cannot be laid en- tirely at the feet of the employer. All the parties bear some respon- sibility for the time that it took. The notice that [Broomfield] gave that she was ready to return to work did not recognize the com- plexity of fitting her back into the workforce and that she bore a con- siderable part of the responsibility to reach a reasonable accommo- dation. In the end, the job found for her required the cooperation of everyone which cannot justifi- ably trigger the damages sought by the union under the circum- stances." More planning should be done, said Larson, to ensure a situation like this doesn't arise in the fu- ture. "Most certainly, there were ways in which the matter could have been better handled by the employer. The fact that it does not have a policy that sets out a proto- col by which discrimination cases should be processed is of consid- erable concern. It is a prescription for further disputes." Reference: British Columbia Public School Employers' Association (Board of Education of School District No. 45 West Vancouver) and West Vancouver Municipal Employees' Association. Dalton Larson — arbitrator. Jessica Fairbairn for the employer. Theodore Arsenault for the employee. July 2, 2019. two paid days and one unpaid day per year for family responsibility leave, which expanded the defini- tion away from a strictly sick-leave system. However, at the end of 2016, the city instructed timekeepers and dispatch supervisors (who were responsible for approving leave) to ask a series of questions to properly categorize acceptable reasons for a leave. The employer developed a list but the ATU grieved this and said it was inappropriate and unfair to workers. The document, dated Dec 5, 2016, outlined how timekeepers and supervisors should handle in- coming requests. "If the reason for the leave does not meet requirements, or the employee refuses to answer the questions with enough detail for a determination to be made, the leave will not be granted. They will be advised that not reporting for work will result in an unex- cused absence," said the docu- ment. The union said that the ques- tionnaire asked too many person- al questions in an effort to deny leave. In one case, an employee was not allowed to travel with her husband on Dec. 24 to spend time with his mother, who had been diagnosed with advanced cancer. The request "did not meet the criteria" for family responsibility leave. Chief timekeeper Blaine Early testified that due to an overly complex scheduling system, the questionnaire was necessary to manage absences and staffing levels. The period of 2006 to 2008 saw employees increasing usage of family responsibility leave, said Early, and that number dropped after the 2016 document. Arbitrator Kristin Gibson up- held the grievances in part and or- dered the city to pay five workers for unpaid leave days previously taken in 2018. As well, some guidance was provided on how the employer should more liberally handle fu- ture leave requests. "[The questionnaire] takes away any discretion on the topic of 'graduations or similar cer- emonies.' To that extent, I think it goes too far, in that the discretion that ought to be exercised by the timekeeper, dispatch supervisor or operations supervisor appears to be completely fettered. I think there may be circumstances, al- though they would be quite nar- row, where attending a gradua- tion or a similar ceremony of a family member might qualify. If, for example, the employee was providing necessary physical or emotional support for a disabled family member who was gradu- ating, in my mind, that could be a family responsibility. Conversely, most graduations, while a time of celebration that an employee would want to attend, would not likely rise to the level of what would be reasonably regarded as a familial duty, absent compelling additional circumstances." As well, management should better understand family situa- tions, said Gibson, to properly manage leaves. "When exercising discretion, the employer designate needs to keep in mind what a reasonable person of the same cultural back- ground would consider a famil- ial duty. It is possible that where questions of cultural background are being considered — in this and other situations where leave is re- quested — the operations super- visor should be involved as that person may have a better under- standing of the operator and their background in this regard." Reference: City of Winnipeg and Amalgamated Transit Union, Local 1505. Kristin Gibson — arbitrator. John Jacobs for the employer. Garth Smorang for the employee. June 21, 2019. 2019 CarswellMan 531 Questionnaire takes away 'any discretion': arbitrator < Transit workers pg. 1 < Return-to-work pg. 1 Both sides share blame in failure to accommodate employee No policy 'prescription for further disputes': arbitrator

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