Canadian Labour Reporter

7 Canadian HR Reporter, a Key Media business 2019 CANADIAN LABOUR REPORTER ARBITRATION AWARDS Because those staff members could not move out of the build- ing due to their positions, Mer- cier was relocated to Mackin- tosh-Corry Hall on Nov. 1. She replied to the notice that, "based on no evidence," she was declared "persona non grata in my own department." As well, said Mercier, the actions were done "without re- gard to the irreparable harm that it will do to my professional and personal reputation." After the move, Mercier dis- covered she had no access to a fax machine, scanner, printer, photo- copier, blackboards or computer. On Nov. 5, she requested the tools but was told by Dean Smith that "there are limits to the assistance we can provide and your most re- cent email exceeds those limits." Eventually, Mercier was given access to the tools of the global development studies department, but only during business hours. Mercier was also not given access to a room to tutor students or a kitchen. Mercier took time off for sick leave on Nov. 26. Her office con- tents (which included three arm- chairs, three standing lamps, a large table with eight chairs, two large bookshelves and a large blackboard) were not moved to the new building. Mercier was off work until Oct. 29, 2014. A grievance was filed by the Queen's University Faculty Asso- ciation (QUFA) on Nov. 26. QUFA argued that the employer failed to give Mercier proper considera- tion when moving her and it didn't explore other alternatives before making such a drastic imposition. It asked for $60,000 in general damages and $5,000 in punitive damages. As well, the university breached the collective agreement when it withheld access to the various work tools. And the employer unfairly harmed Mercier's reputa- tion, said the association. After an investigation, Mercier was not found to be a security threat to her two colleagues in De- cember 2015. Arbitrator Kevin Burkett up- held the grievance. "I have found on an object- ive test that the university acted under article 22 of the collective agreement in forcing the reloca- tion of professor Mercier and banning her from the department premises but that, in doing so, it failed to comply with the employ- ee protections contained in that article. However, if I am somehow in error in this regard, I have also found that if it acted under article 8.1 of the collective agreement, as it asserts, the university failed to exercise its management rights in a manner that was fair and equit- able, as required under article 8.1, not in regard to mandating the separation nor in deciding that it was professor Mercier who had to alter her work arrangements, but in regard to the manner in which it effected the separation as it im- pacted professor Mercier." As well, the university "did not exercise its management rights fairly and equitably in its treat- ment of professor Mercier after it had decided to effect a separation between her and the two support staff members pending an inves- tigation of their cross-complaints and after it had decided that it was professor Mercier who would have to alter her work arrange- ments," said Burkett. Queen's was ordered to pay $20,000 in general damages and a further $5,000 in punitive dam- ages to Mercier. Reference: Queen's University and Queen's University Faculty Association. Kevin Burkett — arbitrator. Alan Whyte for the employer. Cathy Lace for the employee. June 10, 2019. 2019 CarswellOnt 10459 workflow, the employer often employed outside contractors to work — mainly in the live end and evisceration departments — al- though the number of contractors continued to decline due to auto- mation. During negotiations for the 2019 to 2021 collective agree- ment, the use of contractors was clarified after mediation on Aug. 7, 2018. "The company agrees to not contract out bargaining unit work that results in the layoff of a bar- gaining unit employee, or in a re- duction of their regular hours of work," said article 18.8. A further letter of understand- ing (LOU) was attached that rec- ognized contracting will continue but "the company agrees it will not use contract labour in a man- ner that erodes the bargaining unit or reduces the regular daily hours of an employee in the de- partment where contract labour is utilized." But in the early months of 2019, workers in the evisceration and cut and pack departments were sent home, while contract em- ployees remained on the job. The workers received less than a full day's pay. The United Food and Com- mercial Workers union (UFCW), Local 1518 filed three grievances that alleged Rossdown violated the collective agreement. The employer should have used workers from another depart- ment before deploying the con- tactors, said UFCW, which would comply with the final paragraph of the LOU. "Further contract labour will only be utilized after any qual- ified employees on the recall list have been given an opportunity to perform such work." However, the agreement only called for workers in the same departments to replace laid off workers, not from other depart- ments, said Rossdown. Arbitrator James Dorsey par- tially disagreed and upheld two out of three grievances. "Within a department 'where contract labour is utilized' on any day it cannot be used in a man- ner that 'reduces the regular daily hours of an employee.' Because this happened in the cut and pack department group grievances 19- 0167 and 19-0192 are allowed." However, the other grievance was denied because workers in the evisceration department were sent home, while contract work- ers were employed in the cut and pack department. "The language in the final paragraph in LOU does not con- template utilizing employees and contract labour on the same pro- duction day and having any quali- fied employee in any department displace contract labour to avoid a reduction in regular daily hours. That situation is contemplated and addressed in the second limi- tation in the preceding paragraph and is expressly confined to bar- gaining unit employees working alongside contract labour in the same department being able to displace contract labour to avoid a reduction in regular daily hours. Therefore, I conclude the fact pat- tern presented by group griev- ance 19-0155 is not covered by the limitations on the use of contract labour in LOU," said Dorsey. "The limitation in the final paragraph of LOU contemplates a circumstance when the employer has a choice to use contract la- bour or recall a laid off qualified employee with recall rights in a different department. Under the second limitation in the preceding paragraph, the employer cannot use contract labour in a depart- ment if there is an employee laid off in that department." Reference: Rossdown Natural Foods and United Food and Commercial Workers union, Local 1518. James Dorsey — arbitrator. Keith Murray for the employer. Chris Buchanan for the employee. Aug. 9, 2019. 2019 CarswellBC 2349 LOU specified rules regarding use of outside labour < Contracted out pg. 1 < Office relocated pg. 1 Employer provided no access to computer, other work tools

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