Canadian Labour Reporter

August 19, 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 19, 2019 ARBITRATION AWARDS certification (or "fireman's cer- tificate" as it was known colloqui- ally), the caretaker was effectively "stuck" working at the same school, he testified. However, the caretak- er enjoyed his time at the school, and he was happy to remain there, he said. The school operated a fur- nace for heat instead of boiler. In March 2011, the caretaker was advised by Rodd Hoffart, su- perintendent of facilities, that as a "condition of your employment, I ask that you provide an up-to-date certificate by June 30, 2011." All head caretakers were re- quired to hold the proper certifi- cation, even if they did not work with boilers, testified Hoffart. However, two other caretak- ers in the system lacked the cer- tification, said the caretaker. But neither were head caretakers, said Hoffart, and, as such, were grandfathered into their current employment arrangements. And two other caretakers who were unable to maintain their cer- tification were terminated, testi- fied Hoffart. Between 2009 and 2017, the caretaker wrote the exam eight times and failed to achieve the required 65 per cent (53 per cent was his highest score). The caretaker had been assessed with a mild learning disability and this was disclosed to the employer in late 2016. The condition was most likely caused by the head in- juries and a heart attack about 10 years earlier, said the caretaker. The caretaker was given spe- cial accommodations to pass the test, said Hoffart, that included extra tutoring and the use of a memory sheet that wasn't provid- ed to others. On Feb. 17, 2017, the caretaker was terminated. "Offers of test/ answer review, hands-on boiler instruction and time off to write were provided, some of which you chose not to take advantage of," said the letter. The Canadian Union of Public Employees (CUPE), Local 1125, grieved the decision. Arbitrator Allen Ponak upheld the grievance. "The employer is directed to reinstate the grievor as an employee and seek to accom- modate him in a position that he is capable of performing that does not require a fireman's certificate." However, the board was not found fully at fault, said Ponak. "The employer was justified in re- moving the grievor from his posi- tion as a head caretaker but it was not reasonable to terminate his employment entirely." "While much of the fireman's certificate is focused on boiler operation and maintenance, any- where from half to one-third of the syllabus and examination questions address building op- erations apart from boiler systems and cover specific topics relevant for safe building operations. I conclude that it is a legitimate ex- pectation that head caretakers of buildings filled with children have good knowledge of the subjects covered by the FC," said Ponak. However, "the employer failed to balance the interests of the grievor, a 30-year employee with a strong record, in maintaining his employment with the school board after it determined that he was no longer eligible to continue as a head caretaker. The failure to con- sider alternative positions was un- reasonable and is one basis for set- ting aside the termination," he said. But the board's decision to re- quire the certification was rea- sonable, said the arbitrator. "The fact that the grievor was unable to renew his FC despite multiple attempts gives reasonable pause about the grievor's capacity to meet the expected standard for head caretakers. One does not have to wait for something to go wrong to remove an employee who is unable to obtain a legitimate qualification for the position he holds." Reference: Board of Education of the Regina Roman Catholic School Division No. 81 and Canadian Union of Public Employees (CUPE), Local 1125. Allen Ponak — arbitrator. Brittnee Holliday for the employer. Sachia Longo for the employee. July 25, 2019. 2019 CarswellSask 347. Oberg's experience with the Forces provided him with valu- able experience with helicopters. But after an injury made his work with the gang unit untenable, Oberg worked full-time with the air support unit. He was promot- ed to sergeant in summer 2010. Between 2010 and 2017, Oberg split his time 50-50 between the air support unit and one of the city's district as a street-level ser- geant. Oberg trained other offi- cers in the air support unit, devel- oped a new training program and helped select new tactical flight officers. On April 25, 2018, the position of full-time sergeant with the air support unit was posted. It was his lifelong dream to work full-time in that unit, he tes- tified, so Oberg applied a few days before the May 16 cutoff date. The position was responsible for the general daily oversight of the unit. Oberg was notified that he was one of four applicants who were short-listed for the position and he attended an interview. Later that day, Oberg was told that he wasn't the successful candidate. Oberg spoke with a sergeant to discuss why he wasn't chosen but the meeting degenerated into an argument. On Aug. 8, the Calgary Police Association (CPA) filed a griev- ance and argued the process was unfair. As well, the successful can- didate was hand-picked, argued the CPA, which circumvented Oberg's candidacy. Oberg finished second with a mark of 90.4 per cent, while the winning employee scored 93.2 per cent in the final rankings. Arbitrator James Casey dis- missed the grievance. "Despite not having any restric- tions in the collective agreement for lateral position competitions, the Calgary Police Service used its established selection process which was fair, transparent and consistently applied to all candi- dates. The selection process re- sulted in the successful candidate being ranked by the thinnest of margins ahead of Oberg. There is no evidence of arbitrariness, dis- crimination, favouritism, bias, or bad faith. The decision was rea- sonable." Oberg's argument that his past experience wasn't given enough weight was rejected by the arbi- trator. "I agree with Oberg that a rea- sonable argument can be made that increasing the weight given to directly relevant experience and education/training may have strengthened the process in this particular process given that Oberg was seeking a lateral posi- tion in a unit in which he had con- siderable experience. However, it is up to CPS to establish the pro- cess to be used and the weighting of the various factors used in the selection system. It is not for the arbitrator to 'conduct a micro- examination of every feature of the selection process' or 'dissect the process too finely' or engage in too much 'Monday morning quarterbacking,'" said Casey. As well, Oberg found fault with the amount of space he was pro- vided in the cover letter portion of the application. "Reviewing the information provided in Oberg's applica- tion package, it is clear that both he and his supervisor were able to provide fulsome and exten- sive information in support of Oberg's application. I don't find anything unreasonable about the space restrictions especially in the context of the extensive, multi-faceted information con- sidered in the selection process," said Casey. Reference: The Corporation of the City of Calgary and the Calgary Police Association. James Casey — arbitrator. Rebecca Anderson, Vanessa Porozni for the employer. Patrick Nugent for the employee. July 29, 2019. Up to employer to establish appraisal process: arbitrator < Calgary pg. 1 < Firefighter certificate pg. 1 Firefighter exam failed 8 times by employee over 8 years

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