Canadian Labour Reporter

July 6, 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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July 6, 2020 three-quarters of a full-time equivalent position. In September 2017, Lorenzen made another request for ac- commodation in a permanent day-shift position, supported by information from her physician stating she was unable to work night shifts because of an illness. However, the hospital deter- mined it couldn't accommodate her permanently in unit 4E4 as it was developing a new shift rotation that would change all 12-hour shifts and the ratio of RNs to licensed practical nurses in the unit. In addition, it was already accommodating two people on straight day shifts in the unit and said it couldn't have anyone else working straight days without creating an "unsus- tainable workload for the unit manager in rebalancing lines" and "challenges in sustaining safe RN staffing levels on nights." In December 2017, a vacancy in the hospital's pediatric car- diac intensive care unit opened that involved day shift work, so the hospital held the position for Lorenzen. She transferred to the unit three months later in early March 2018. Lorenzen matched up well with the new position and the hospital felt the other unit would benefit from her expe- rience and skill, but the union filed a grievance over the trans- fer. It claimed that the hospi- tal could have accommodated Lorenzen on unit 4E4, where she had worked for 10 years, and transferring her violated the collective agreement and discriminated against her with respect to the terms of her em- ployment set out in her offer let- ter for the position on 4E4. The arbitration board noted that while the interests of an employee seeking accommo- dation by remaining in their original position is "a factor to consider," the law didn't require employers to establish undue hardship in "a local accommo- dation" before considering oth- er options such as a transfer. If it did, it would create a "two-step process" where "a local accom- modation with disruption just short of undue hardship would prevail over other options that could be achieved with far less disruption" that would distort the accommodation process that involves a balance of the in- terests of both the employer and employee, said the board. The board found that the hos- pital's reasons for denying per- manent accommodation in unit 4E4 for Lorenzen were legiti- mate, stating that although Lo- renzen was temporarily accom- modated on her regular unit, the staffing was out of balance and it wasn't sustainable after the staff- ing rotation was changed to meet patient needs. The board also found that the hospital met its duty to accom- modate by temporarily accom- modating Lorenzen on unit 4E4 until it found a more permanent option on another unit, and then assigning her to that position. "We find it was open to the employer, after weighing its ability to accommodate within unit 4E4, and finding significant hardship, to look for other alter- natives that met her needs but with far less impact on its insti- tutional and patient care needs," said the board. Reference: Alberta Health Services and UNA. Andrew Sims, Jacquie Wolff, Blair Bukmeier — arbitrators. Monica Bokenfohr for employer. Katie McGreer for union. May 6, 2020. 2020 CarswellAlta 1112 Transfer reasonable due to lesser impact on staffing: Arbitrator P.E.I. worker didn't qualify for absence after taking second job was applying for general leave of up to three months without pay, as provided for in the collec- tive agreement. However, Gillis wanted more than three months off. Canada Post looked at wheth- er Gillis ought to be granted "care and nurturing leave" instead — another type of leave in the col- lective agreement for employees with pre-school aged children. It could last until the employee's children were school age — up to five years — but employees couldn't have another job during that time. The union was concerned that if Gillis took care and nurturing leave, it would restrict her ability to take a part-time job. Gillis ap- plied for general leave from April 3 to July 3, which was approved. Gillis found a six-month tem- porary job during her leave and sent her children to daycare when she was working. In June 2016, Gillis submitted a request for another six-month leave starting on July 3, making no reference to the type of leave but entering the code for "fam- ily responsibilities." Canada Post denied the request due to staff- ing issues that had arisen from "annual leave congestion." Despite the fact that her re- quest was denied, Gillis didn't report to work on July 4 and she didn't inform Canada Post of her absence. Canada Post sent her a letter and left messages requir- ing her to show up or face pro- gressive discipline up to and in- cluding dismissal. Gillis didn't respond, so Cana- da Post sent her a second notice requiring her attendance or a satisfactory explanation for her absence. A third letter stated that it was possible she had intended the request to be for care and nurturing leave, but because she had another job she was ineli- gible. It ordered her to report by July 18 or be dismissed. Gillis then applied for care and nurturing leave for six months, but the application was rejected. Canada Post gave Gillis one more chance to report but she didn't, so it dismissed her on July 20. The union grieved the dismissal, claiming Canada Post failed to respond to Gillis' needs and her entitlement to leaves under the collective agreement. The arbitrator found that Gil- lis met the conditions for general leave, but she was working at an- other job when she applied for the care and nurturing leave — contrary to its purpose. "The plain meaning of the lan- guage describing the leave in the context of a duration of up to five years (which is the normal age at which children go to school), leads me to the conclusion that the purpose of the leave is to enable a parent who works for Canada Post to get leave to allow them to personally stay at home and rear their children," said the arbitrator, noting that many par- ents have to work and put their children in daycare, but the care and nurturing leave was specifi- cally for the purpose of staying home with children. The arbitrator also found that Canada Post could deny leave re- quests based on operational re- quirements, as it did in this case. There were staffing issues and Gillis' position as a relief letter carrier was specifically intended to help with that type of situa- tion. Since Canada Post gave Gillis multiple opportunities to report to work or explain her absence and she failed to comply, the ar- bitrator determined that the cor- poration had grounds to termi- nate her employment. Reference: CUPW and Canada Post. Bruce Archibald — arbitrator. Emily Rahn, Karen Campbell for employer. Jim Gallant for union. April 27, 2020. 2020 CarswellNat 2011

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