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Issue link: https://digital.hrreporter.com/i/1271048
July 20, 2020
the symptoms returned when he
participated in a training exer-
cise. First Canada allowed him to
switch to an eight-hour shift.
Bartlett tried another driver
position, but it soon led to 10-
to 11-hour shifts. The regional
safety manager helped him get
another split shift, but he soon
started receiving maintenance
run assignments between his split
shifts.
On June 11, 2016, Bartlett was
assigned a bus wash, but he said
he was only required to perform
duties related to his assignment
shuttling workers. First Canada
maintained that it expected all
drivers to be available for a variety
of assignments during the day.
Three days later, Bartlett re-
fused to do a maintenance run as
he said it would make him sick.
Management sent him home and
arranged for a fitness assessment.
The July 2016 assessment
found "there is concern and stress
around returning to work in an
overloaded capacity." It recom-
mended split shifts totalling no
more than eight to nine hours per
day with at least four hours be-
tween them. The assessment not-
ed that consistency in work hours
and rest between shifts were key
factors in reducing Bartlett's
symptoms.
On July 20, First Canada de-
termined that Bartlett's need for
limited hours didn't fit with the
demands of its client. It said that
Bartlett could only return to work
with medical clearance to work
full duties.
The union filed a grievance
regarding First Canada's failure
to accommodate Bartlett's dis-
ability. First Canada agreed to
give Bartlett a "steady eight-hour
assignment" if he provided a doc-
tor's note, but it refused his de-
mand for back pay. Negotiations
led to Bartlett returning in July
2019 with a schedule that met his
restrictions, but First Canada re-
fused to compensate him for the
three years of work he had missed.
The arbitrator found that First
Canada acted appropriately
when it provided "comprehen-
sive medical assessment and
support services" to Bartlett af-
ter it removed him from service.
However, it didn't seek further
information before deciding his
restrictions were unworkable,
didn't try to generate a schedule
with Bartlett's specifications,
and it insisted that if he couldn't
perform regular duties, he
couldn't work.
"The employer appears to
have made this decision with-
out regard to the accommoda-
tion needs of the employee, but
rather with an exclusive focus on
the needs of its customer and the
belief that all employees must
be available and perform the re-
quirements of the schedule that
supports the customer, regard-
less of any impact on their health,"
said the arbitrator.
In addition, First Canada main-
tained that if Bartlett expected
compensation for wages lost dur-
ing the time he wasn't allowed to
work, he wouldn't be permitted to
return.
The arbitrator determined that
First Canada failed to meet its
duty to accommodate. The com-
pany was ordered to pay Bartlett
compensation for lost wages from
when he was sent home in July
2016 until his return to work plus
$10,000 in damages for injury to
his dignity.
Reference: First Canada and IUOE, Local 955. Greg Francis — arbitrator. Michael Ford for employer. Wayne Benedict for
union. June 9, 2020. 2020 CarswellAlta 1154
Bus company didn't examine other scheduling options
Hospital required nurses to only buy standardized uniforms
while on duty. Nurses paid for
their own scrubs, except for those
who worked in the operating
room, the post-anesthetic care
unit and case rooms — the hos-
pital supplied them with clean,
washable scrubs. Employees were
free to choose the style and colour
of the scrubs and from where they
were purchased.
In 2017, the hospital informed
the ONA that it planned to revise
the dress code with a standard-
ized uniform for the purposes of
infection prevention and control,
patient health and safety, the hos-
pital's professional image, and to
make it easier for seniors to identi-
fy the staff members they needed.
The revision was implemented
in April 2019. Registered nurses
and registered practical nurses
were required to wear royal blue
scrub tops with their designation
embroidered or heat-pressed on
them. Pants were to be black, but
could be acquired anywhere.
The hospital entered into a
bulk purchasing agreement with
clothing retailer Mark's Work
Wearhouse. Employees ordered
uniform tops by submitting a
standardized form and picking
the orders up at the store.
Because employees had no
choice but to purchase the uni-
form tops at Mark's prices, the
hospital provided staff with six
scrub tops each on a one-time
basis. The tops were mid-range
in cost, but the bulk agreement al-
lowed staff to purchase them at a
lower price than if purchased in-
dividually. There were also some-
times clearance sales.
The ONA filed a grievance
against the new policy, claiming
the change was unreasonable and
"a financial cost to our members."
It argued that under the old dress
code policy, nurses could buy
scrub tops at lower prices than
what they were now required to
pay. In addition, some nurses with
long service or who were near
retirement had enough scrubs
to meet their needs, but the new
policy required them to buy new
ones. As for the one-time provi-
sion of six free tops, nurses would
still have to buy uniforms at some
point and those hired after the im-
plementation weren't eligible.
The ONA also pointed out that
the requirement for nurses to buy
their scrub tops through the ar-
rangement with Mark's violated
the collective agreement since it
imposed increased costs for some
nurses and changed the wage
structure outlined in the agree-
ment.
The arbitrator noted that a
mandatory cost imposed by an
employer should generally be
considered unreasonable.
However, purchasing scrub
tops from one vendor was the only
way to implement the policy of
standardized uniforms — and the
purpose was "grounded in legiti-
mate considerations."
The arbitrator found that
while the cost of the scrub tops
from Mark's was higher than the
cheapest available at other re-
tailers, there was a discount and
there was no minimum number
that nurses were required to buy.
The difference in pricing was less
than $10 per scrub top, which
wasn't a significant amount of
money considering hourly pay
for nurses ranged from more than
$33 per hour to more than $47
per hour — and there was no evi-
dence on how long they lasted or
if anyone had yet to replace those
provided by the hospital, the arbi-
trator said.
The arbitrator determined that
the "unquantified but small extra
financial burden for some nurses"
was a reasonable change to the
dress code policy and the hospi-
tal's initial absorption of the bur-
den by providing six free uniform
tops gave the union time to collec-
tively bargain for a uniform allow-
ance in the future.
Reference: Cornwall Community Hospital and ONA. Lorne Slotnick — arbitrator. Lennie Lejasisaks for employer.
Alison Dover for union. June 16, 2020. 2020 CarswellOnt 8470