Canadian Labour Reporter

February 24, 2020

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 2020 February 24, 2020 ARBITRATION AWARDS table chart and escorted patrons to their tables. On May 26, 2019, Skrzeckz- kowski seated a party that includ- ed a girl under the age of 19 along with her mother and grandpar- ents. Thompson was the server for their table. The casino learned of this and was required to report the incident to the AGCO so the commission could conduct its own investigation. Surveillance video depicted Skrzeckzkowski at the hostess po- dium for about 20 seconds while the minor was waiting in line and later walking by her table four times. It also showed Thompson coming to the table multiple times and looking directly at the girl. The casino interviewed both employees and Skrzeckzkowski said she didn't remember greet- ing a party with a young girl, say- ing that she may have been on a break. She also said it was a busy night and she was the only host- ess on duty when normally two or three were working. She ex- plained she was focused on the seating chart and helping clear tables, so her "mind was probably somewhere else." Thompson acknowledged noticing the girl but said he thought his supervisor had checked her ID. He admitted he should have checked and it was a "lapse in judgment" that was a "serious offence." The casino concluded that both Skrzeckzkowski and Thompson had committed a serious offence by allowing a minor inside. Be- cause they didn't initially admit culpability or regret, they couldn't be trusted. The casino terminated their employment effective June 4. It also dismissed two security per- sonnel and a supervisor. The arbitrator noted that the casino was "fully entitled, indeed obligated, to treat the presence of a minor in the casino as a seri- ous issue." The surveillance video made it clear that Skrzeckzkowski and Thompson failed to identify an obvious minor and didn't live up to their responsibilities. However, the arbitrator found that the misconduct should be classified more as "mistakes" rather than dishonesty. Skrzeckz- kowski missed identifying the mi- nor because she was busy — her suggestion she might have been on a break was due to the fact she simply didn't notice the girl, not an attempt to cover it up, said the arbitrator. And while Thompson should have checked for ID, he was under the assumption that it had already been done. "While the employer's skepti- cism is understandable, I am not satisfied that the responses pro- vided by [Skrzeckzkowski and Thompson] during the investiga- tion demonstrate dishonesty," the arbitrator said. The arbitrator also found that neither employee had anything to gain by overlooking the presence of a minor. Given the seriousness of the situation and their clean disciplinary records, the arbitrator determined that it was unlikely they would repeat their negligence. In addition, the fact that five employees were immediately discharged would serve as an appropriate message of deterrence for all employees, along with significant discipline short of termination for Skrzeckzkowski and Thompson, the arbitrator said in ordering the casino to reinstate both. Reference: Ontario Gaming GTA LP o/a Great Blue Heron Casino and Unifor, Local 1090. James Hayes — arbitrator. George Waggott for the employer. Corey Dalton for the employee. Jan. 30, 2020. 2020 CanLII 5940 Dixon moved around to other city departments before becom- ing a payroll clerk in the corporate services department in 2007. On June 8, 2008, the city in- formed Dixon that her position was being eliminated due to a re- organization and she was being laid off. However, the collective agree- ment allowed laid-off employees to "bump" employees in other positions who have less seniority "provided they meet the qualifi- cations." Dixon reviewed various posi- tions with the city that she felt qualified for and had the seniority to bump into and provided a list of six positions. Her first choice was that of operations data tech- nician (ODT) in the traffic opera- tions area of the public works de- partment. On June 22, the city's HR de- partment told Dixon that she didn't meet the experience quali- fications for the ODT position — specifically, the requirement of "over one year of municipal trans- portation experience." Dixon disagreed and at a meeting six days later said that her experience working in the planning department — involving intake and review of applications for city departments such as fire, police and traffic — with the home builder before her employment with the city, and her time as a payroll clerk met the experience requirements. She noted that she interacted with the traffic expert regarding applications and this should count as traffic experience. However, the city specified that the necessary experience was of a technical, not administrative nature, from working in the field. The senior manager of traffic operations reviewed Dixon's qualifications and agreed. The union filed a grievance on Dixon's behalf, arguing she had the more than one year of municipal traffic/transportation experience in the posted job requirements and the city changed the qualifications in the middle of the bumping process to require technical experience. The arbitrator noted that the city could have asked for technical or field experience related to spe- cific ODT job duties but it chose not to. The job posting gave no in- dication that such experience was required and the other qualifica- tions — such as experience creat- ing databases and spreadsheets, post-secondary education, and good communication skills — were mostly related to "sedentary" work. As a result, the city's assess- ment of Dixon's qualifications "improperly took into account experience qualifications beyond any reasonable interpretation of the words 'over one year of munic- ipal traffic/transportation experi- ence,'" the arbitrator said. However, the arbitrator found that Dixon's experience with vari- ous city departments and the traf- fic expert was "purely clerical" and "did not equip Dixon with any significant understanding of the operations of the traffic depart- ment beyond its relevance to the planning process." The arbitrator noted that to use that standard would mean Dixon had fire and police experience as well, which wasn't a reasonable conclusion. The arbitrator stated that it was reasonable to view the experience qualification in the ODT posting must relate to "the core or central work that is performed in a mu- nicipality's traffic or transporta- tion area." Dixon's experience as a payroll clerk was "supportive of, but tangential, to the operations of the traffic department" and didn't qualify her for the ODT position, the arbitrator said. The arbitrator dismissed the grievance, noting that it might be possible for Dixon to be able to perform the duties of an ODT "with time and training" but she didn't meet the experience re- quirements in the job posting. Reference: Canadian Union of Public Employees, Local 543 and Corporation of the City of Windsor. Lyle Kanee — arbitrator. Mark Nazarewich, Amit Gurpersaud for employer. Stephen Krashinsky for employee. Jan. 31, 2020. 2020 CanLII 9248 Staff interactions not considered experience for traffic position < Seniority pg. 1 < Underaged pg. 1 Workers unlikely to display negligence in future: Arbitrator

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