Canadian Labour Reporter

November 11, 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 November 11, 2019 ARBITRATION AWARDS Term employees lose their con- tinuous employment status if they don't work for a period of more than 30 consecutive days. Sched- uling of term employees was gen- erally done directly in person or by telephone so it could be done in a timely manner. In June 2016, Visser discussed with the postmaster the possibil- ity of taking vacation time in July to go on a fishing trip — term em- ployees didn't get regular vacation leave, they just asked for time off during which they wouldn't be scheduled to work. The postmas- ter told her to put the dates on the white board in the lunchroom where vacation schedules and re- quests were normally put. The postmaster posted schedul- ing sheets with the availability and assigned shifts for each employee showing Visser as off on her re- quested dates of July 18 to 22. In addition, no term employees were scheduled from July 11 to 15 or July 25 to 29 due to low mail volumes. Just before the start of the fish- ing trip, Visser wasn't able to go, so she went to the post office on July 15, changed the dates on the white board, filled out a vacation form re- questing a personal day for July 18 and texted the postmaster to tell her she was available for work that week after the personal day. However, the postmaster didn't receive the text. In addition, the vacation request form was refused because she already scheduled off work and term employees didn't get formal vacation leave. On July 21, a three-hour shift be- came available and CPC called in a casual employee to fill in. On Aug. 2, 30 days elapsed, during which Visser hadn't worked and she lost her continuous employment status. Visser's term contract finished on Dec. 31, 2017 with only con- tinuous service since August 2016. When it wasn't renewed, the union filed a grievance argu- ing that Visser should have been called into work on July 21, 2016 as she should have had prior- ity over a casual employee to work that shift and the collective agree- ment prohibited CPC from artifi- cially creating "a break in service of a term employee solely in or- der to prevent the term employee from attaining an improved status as a term employee." The arbitrator found that Visser didn't clearly communicate the change in her availability since she didn't speak to the postmaster directly, she created confusion by filling out a vacation request form — something term employees didn't do — and she didn't verify that CPC knew of her availability. The text wasn't the accepted way to communicate and when Visser didn't receive a reply, she didn't check that it had been received. The arbitrator also found that there was no evidence CPC "know- ingly, intentionally or maliciously scheduled (the casual employee) for the unexpected shift on Thurs- day, July 21 rather than (Visser)." The postmaster was unaware that Visser was available that day and also wasn't responsible for keeping track of Visser's continuous em- ployment status, said the arbitrator, in dismissing the grievance. Reference: Canada Post and CPAA (Visser). D.P. Jones — arbitrator. Geoff Hope, Evie Thorne for employer. Sean McGee for employee. Sept. 26, 2019. 2019 CarswellNat 5190 of a special or unusual nature." If an employee had "regular or recurring medical treatments and checkups," up to one day per oc- currence could be granted. The worker was a benefits/ travel assistance officer at the GNT Department of Finance. She was hired in 1993 and worked Monday to Friday. In early 2016, the worker was receiving counselling for sub- stance abuse and other mental health issues. As part of her coun- selling, she was referred to an outpatient alcohol treatment pro- gram that ran for 10 weeks from March to May 2016. The program had two-hour sessions on Mon- days, Tuesdays and Thursdays and a one-hour session on Fri- days, all starting at 3 p.m. In mid-February, the worker's manager approved her to use casual leave to attend the seven hours of sessions each week. A couple of weeks later, the GNT proposed a different arrangement that adjusted her work hours and used another type of leave for part of the time. The GNT said the worker's request fell outside the intended scope for casual leave — with travel time added, it would amount to at least 80 hours over the 10 weeks. The worker accepted the pro- posed arrangement, but just be- fore the program was to start, she dropped out due to personal rea- sons. Soon after, the union filed a grievance over the denial of casual leave that the collective agree- ment permitted and said it caused the worker to postpone or cancel treatment referred by her doctor. UNW argued that it was nor- mal practice to grant employees casual leave to attend appoint- ments "which are occasional in nature and that do not significant- ly impact the operational require- ments of their workplace." The arbitrator noted that the col- lective agreement provision on ca- sual leave stated that the employer "may" grant the leave, rather than "shall." Employees were eligible for casual leave if they met certain criteria, but the employer had the discretion on whether to grant it — though this discretion wasn't "unfettered," as the collective agree- ment also stipulated that "such ca- sual leave shall not be unreasonably denied," said the arbitrator. The reason for the worker's leave request wasn't a typical medical appointment as per the normal purpose of the leave, but the collective agreement also al- lowed for "purpose of a special or unusual nature" or if a doctor requires "regular or recurring medical treatments." The worker's treatment program was such a purpose, said the arbitrator. The arbitrator also found that the GNT didn't claim the amount of leave would negatively impact operations at the time of the re- quest and there was no evidence that was the case — the worker's manager initially granted the leave. In addition, the arbitrator noted that normally, one- or two-hour absences several times per week could be disrupting to the work- place, but the worker's program had a finite duration of 10 weeks and the schedule was known in ad- vance, so disruption could be min- imized for that period of time — a reasonable expectation given the importance of the reason for the leave request, said the arbitrator. The arbitration determined that the GNT violated the collective agreement by denying the request for casual leave. However, since the worker withdrew from the pro- gram anyway after agreeing to the adjusted work hours, there was no evidence the worker suffered any financial or other loss. As a result, there was no damage award. Reference: Northwest Territories and Union of Northern Workers (16-E-01900). Allen Ponak — arbitrator. Sandra Jungles for employer. Rebecca Thompson for employee. Oct. 7, 2019. 2019 CarswellNWT 49 Leaving work early for alcohol treatment not typical < Too casual pg. 1 < Continuous pg. 1 Alberta worker didn't follow proper vacation, leave rules "The postmaster wasn't responsible for keeping track of Visser's continuous employment status."

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