Canadian Labour Reporter

July 20, 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 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

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