Canadian Labour Reporter

7 Canadian HR Reporter, a HAB Press business 2020 CANADIAN LABOUR REPORTER ARBITRATION AWARDS employee's negligence or abuse" and employees were required to promptly report lost equipment. In August 2017, Pacific West gave Montgomery a new signal- strength meter — a device used to detect and measure Wi-Fi signal strength for site survey and sys- tem installation. He didn't use the meter very often and usually left it in a bin inside his van, which was cluttered with equipment. At some point, Montgomery discovered the signal-strength meter was missing and he had no idea what had happened to it. He didn't immediately report it. In March 2018, the company's A-foreman gave meters to the B- foreman to distribute. The B-fore- man gave one to Montgomery. The A-foreman was aware that Montgomery had been given a signal-strength meter the previous August and asked him to confirm that he had received a second meter, along with its serial number. Montgomery didn't initially re- spond but sent a photo of the se- rial number after the A-foreman followed up. The A-foreman asked Mont- gomery what had happened to the other meter and Montgomery explained that he had lost it. The A-foreman then explained that Montgomery was required to pay for the cost of replacing the lost meter — $649.60 — and asked him if he wanted to do so in one amount or in instalments. Montgomery didn't respond, so the operations manager autho- rized payment in three instal- ments through payroll deduction. The union's assistant busi- ness manager learned that Pa- cific West made a deduction from Montgomery's pay, he pointed out that signal-strength meters were not on the approved em- ployee tool list in the collective agreement. When he followed up two months later, the full amount of the meter's cost had been de- ducted from Montgomery's wag- es and the union filed a grievance. Pacific West responded that all equipment it issued to employees "must be properly secured and maintained at all times while in their possession." The collective agreement required the company to replace, at its own cost, equipment or tools that were worn or broken, "but not for loss though negligence." The company also argued that the approach to climbing gear should be the same for electronic equipment such as meters, where employees are responsible for the cost of loss or damage through negligence. An arbitration panel noted that the withholding and deduction of part of Montgomery's wages to recover the cost of the signal- strength meter was contrary to the B.C. Employment Standards Act and there were multiple court and arbitration decisions finding that "an employer may not resort to self-help to recover a claim it makes against an employee by deducting the amount it claims from an employee's wages." Since the act prohibited the de- duction of wages, the collective agreement couldn't contract out of that employee right, said the panel in determining that Pacific West was not allowed to deduct Montgomery's wages. Pacific West was ordered to pay Mont- gomery the $649.60 that had been deducted. Reference: IBEW, Local 213 and Pacific West Cable (Deduction from Wages to Recover Cost). James E. Dorsey — chair. Jerry Solem for employer. Dru de Saint-Pierre for employee. May 1, 2019. 2019 CarswellBC 1207 circumstances where more than nine of the rooms assigned to a particular housekeeper, the room assignment for that housekeeper was to be reduced to 15. In late 2018, some of the house- keepers at the hotel felt the hotel's cleaning standards were making it difficult for them to complete their assigned rooms in time. As a result, some made mistakes or had to work through their breaks to get the rooms cleaned by the end of their shift. In November and December, there was a large num- ber of mistakes made by house- keeping staff. Conchada made more frequent mistakes than the others, though she and other housekeepers were encouraged to ask for help when the needed it. Conchada did ask for help oc- casionally but she had received discipline such as suspensions and warnings for not cleaning her assigned rooms enough. Conchada was also a union sup- porter and was vocal about work- place issues and, along with a cou- ple of other employees, pushed for labour-management meetings to discuss workload levels. On Dec. 7, 2018, the house- keeping manager found one of Conchada's assigned rooms had an unclean toilet, a dirty fridge, a Bible with writing in it, and dirty faucets. Some of Conchada's other rooms were checked and four of them all had issues including dirty bathroom floors, dust on a TV cabinet, dirty glasses, a fridge full of ice and dirty coffee trays. The housekeeping manager felt it was a lot of mistakes for one day and she had been fighting "a con- stant battle" with Conchada every week to get her to meet the hotel's cleaning standards. As a result, the hotel decided to suspend Conchada for three days. The union grieved the suspen- sion, arguing that the standards to which Conchada and other housekeepers were held were unreasonable. It also claimed the hotel discriminated against Conchada because of her vocal concerns about workplace is- sues, pointing to instances where other employees made cleaning mistakes similar to Conchada but weren't disciplined. The arbitrator found that while some employees who made simi- lar mistakes to Conchada were not disciplined, there union didn't provide any evidence as to how many mistakes they made com- pared to Conchada. Given that the housekeeping manager had indicated Conchada had made mistakes on a number of occa- sions and wasn't improving, the evidence supported the fact that Conchada's circumstances were different and more deserving of discipline than other employees who weren't disciplined. As a result, there was no dis- crimination based on Conchada's vocal union support, said the arbitrator. The arbitrator also found that the collective agreement standard of cleaning 16 rooms in an eight- hour shift had not been chal- lenged by the union when the col- lective agreement was negotiated, so the union couldn't argue it was unreasonable for the hotel to as- sign that number for housekeep- ers to clean. However, the arbitrator noted that it was clear that sometimes housekeepers had difficulty com- pleting their work properly with- out mistakes. Though Conchada's mistakes were more numerous and frequent that some others, there was a large number of mis- takes made by all housekeepers in November and December 2018. This "overall problem of house- keepers sometimes not being able to complete their work" should have been taken into account when determining Conchada's discipline, the arbitrator said. The arbitrator determined that the three-day suspension was ex- cessive and substituted a written letter of reprimand and warning in its place. Reference: Reunion Properties and UNITE-HERE, Local 40 (Dulce Conchada 3 Day Suspension). Gabriel Somjen — arbitrator. Kevin Wooliams for employer. Mike Miskar for employee. March 26, 2019. 2019 CarswellBC 1188 Three-day suspension found to be unreasonable: arbitrator < Constant battle pg. 1 < Missing pg. 1 B.C. company cannot deduct wages to recover loss of tool

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