Canadian Labour Reporter

October 7, 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 October 7, 2019 ARBITRATION AWARDS with a note from his doctor saying the leave should run for two weeks. A few days before his scheduled re- turn, Parsons produced a note that said he needed another two weeks off until Sept. 11 due to plantar fas- ciitis in his foot. However, the security service manager learned that Parsons had been working for a security con- tractor at a local Walmart store while on medical leave. The con- tractor, said Parsons, had been working the overnight shift for the past two weeks and the work re- quired him to stand. At an interview, Parsons denied working for another company while on medical leave, but Se- curitas confirmed again with the other employer that Parsons had been working 12-hour shifts go- ing back several months. On Sept. 27, the company ter- minated Parsons' employment for abuse of his medical leave of ab- sence, breaching the high level of trust needed for his position as well as the company's code of ethics. The United Steelworkers (USW), Local 9342 grieved the dis- missal, and argued Parsons made "one bad decision in his 16 years of employment" and shouldn't have been let go. Securitas also failed to follow the collective agreement article on discharge and disciplin- ary procedure, which emphasized "corrective discipline" and a four- step disciplinary process, it said. Three weeks after his dismissal, Parsons sent a letter of apology, but he continued to deny work- ing for another company while on leave, saying he was just visiting a friend working at the Walmart and it was a misunderstanding. However, the position of screening officer required "a high level of trust and integrity," and this was supported by the compa- ny's code of ethics, said arbitrator James Oakley. Parsons requested accom- modation to work only day shifts when he was working nights for another employer, and then claimed he couldn't work due to a foot problem. But he was working elsewhere in a job that involved standing and these were a breach of trust with the company so there was no doubt discipline was war- ranted, said Oakley. While the collective agreement outlined a progressive discipline process, the same article also stated that progressive discipline was de- pendent on "the severity of the in- fraction" and examples of cases that would support discharge included dishonesty, said the arbitrator. Parsons had no disciplinary re- cord and 16 years of service, but Oakley disagreed with the union's argument that it was an isolated in- cident. Parson's dishonesty began with his request for accommoda- tion in March 2018 and continued through his medical leave until September, which was six months. This was a lengthy period of mis- conduct, for which Parsons failed to apologize at either the investiga- tive interview or the termination meeting. In addition, the letter of apology doubled down on the dis- honesty by trying to further cloud the situation, according to Oakley. The arbitrator determined that Parsons' "continuing acts of dishonesty over a lengthy period of time" made it impossible to restore the employment relation- ship and were serious enough to bypass any consideration of pro- gressive discipline and move di- rectly to dismissal for cause. Reference: United Steelworkers, Local 9342 and Securitas Transport Aviation Security Ltd. James Oakley — arbitrator. Jack Graham for the employer. Ron Thomas, Boyd Bussy for the employee. June 12, 2019. 2019 CarswellNfld 356 driver's licence number as another driver in the same household. However, there was no space on the form for the type of licence she had (at the time, Arte had a G1 class driver's licence, commonly known as a learner's permit). This meant she couldn't drive without someone with a higher class of li- cence in the vehicle with her, she couldn't drive at night or on high- ways, and she couldn't consume any alcohol before driving. Under its collective agreement, CLC provided a car allowance for specific positions to compensate employees "for ground travel they may be required to do on behalf of the CLC during the regular work- day as well as evenings and week- ends." In June 2018, CLC learned that Arte only had a G1 licence. Soon after, CLC informed Arte that she should not have been eligible for the car allowance because of her driver's licence classification. In June 2018, CLC learned that Arte only had a G1 licence. Soon after, CLC informed Arte that she should not have been eligible for the car allowance because of her driver's licence classification. It said she ought to have made al- ternative arrangements for travel like others who have either a G1 li- cence or no licence at all and can't drive themselves. Arte was told to pay back what she had received, which was seven monthly payments of $625, a par- tial payment for her first month, $120 for a licence plate sticker renewal, and $1,593 in insurance premiums for a total of $6,612. CLC said it would forgive the gas and oil charges Arte had claimed. CLC gave Arte two choices for repayment: a direct payment or deferral of the car allowance once it was reinstated when she attained her G2 licence. Arte de- clined both plans and CLC dis- continued the car allowance, lead- ing to a grievance by Arte's union, the International Association of Machinists and Aerospace Work- ers (IAM), Local 3111. Arte at- tained her G2 driver's licence one month later. Arbitrator Kim Bernhardt said that the language in the collective agreement referring to the car al- lowance was "clear and unambig- uous" on the requirements — the car's engine specs, gasoline, age, insurance premium, and that the car be made by unionized work- ers. Arte met all of these criteria. There was no reference to any licence requirement, said Bern- hardt. The arbitrator upheld the grievance and granted Arte the car allowance for the entire pe- riod of her employment. CLC was ordered to reimburse Arte for any withheld car allowance payments after she attained her G2 licence. While CLC argued that Arte wasn't forthcoming in disclosing the fact that she had a G1 licence, the arbitrator found it wasn't rel- evant since there was no require- ment for employees to specify the type of licence they had. Arte fully completed the information form that had no reference to licence classification, and the car allow- ance didn't hinge on it. The arbitrator also found that Arte's G1 licence didn't prevent her from fulfilling her job duties including driving for work-related purposes: She was always able to make arrangements to have someone accompany her, as re- quired by her licence. Reference: Canadian Labour Congress and International Association of Machinists and Aerospace Workers, Local Lodge 3111. Kim Bernhardt — arbitrator. Charles Hofley for the employer. Dina Mashayekhi for the employee. Sept. 24, 2019. Agreement didn't include requirement on licence type < Car allowance pg. 1 < Moonlighting pg. 1 Breach of trust, lengthy period of dishonesty: arbitrator Parsons made "one bad decision in his 16 years of employment."

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