Canadian Labour Reporter

November 2, 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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uled by Air Canada with the rest of their annual vacation allotment. This is permitted by the Canada Labour Code, which stipulates that "the general holidays stan- dards do not apply where a col- lective agreement confers on em- ployees' rights and benefits at least as favourable as those conferred in respect of length of leave, rates of pay, and qualifying periods for benefits." However, Air Canada treats all the time off for pilots equally, meaning pilots don't receive any extra holiday pay for the holiday lieu days that are part of the agree- ment. The Air Canada Pilots As- sociation (ACPA) challenged this practice, arguing that the pilots should be receiving holiday pay for the nine holiday lieu days under the code. It said that the exemption for employees who make them- selves unavailable only applies to those making an individual choice. Air Canada's scheduling and bid- ding system for vacation was sub- ject to certain availability limits, which didn't necessarily mean pi- lots could always schedule specific days upon which to observe gen- eral holidays, said ACPA. The arbitrator agreed that the holiday lieu days were the equiva- lent of general holidays under the code and Air Canada and ACPA took advantage of the option to give flexibility on when to sched- ule them — a greater benefit than mandating which days are to be taken as general holidays. The arbitrator noted that the purpose of the code's section that allows for flexibility in col- lective agreements is meant to ensure clear communication to employees of which holidays are substituted for which days. The collective agreement in this case provided such clear communica- tion, as pilots would know upon which days their general holidays would be observed because the agreement allowed them to bid on the days themselves. "The language of the collective agreement clearly lets the pilots know that each one of them are given the ability to select nine days of their choice, subject to the vaca- tion bid system, in place of the gen- eral holidays under the code," said the arbitrator. The arbitrator disagreed with ACPA's interpretation of the ex- emption in the code, noting that it refers to "the conditions of em- ployment" allow them to make themselves unavailable. The col- lective agreement established the vacation bid system and schedule and protected them from inter- ruption, thus establishing the conditions of employment. As a result, the conditions of em- ployment allowed pilots to make themselves unavailable for work by booking time off — in line with the vacation pay exemption, said the arbitrator. "What all of this means is that when pilots book off the nine sub- stituted general holidays and Air Canada is no longer able to sched- ule them for work or draft them to work pursuant to the terms of the collective agreement, they are unavailable for work in the way in which the terms and conditions of employment allow them to make themselves unavailable," said the arbitrator in dismissing ACPA's grievance. Reference: ACPA and Air Canada. Jesse Nyman — arbitrator. Irene Chrisanthopoulos for employer. Christopher Rootham for employee. Sept. 23, 2020. 2020 CarswellNat 3999 Agreement allows aviators to declare they are occupied Pattern of worker's behaviour had to be addressed for placement in care facilities or home care. Radcliffe got along well with his colleagues in the home care unit, the majority of whom were wom- en. He liked joking around and felt comfortable with everybody. However, sometimes he made comments that made his col- leagues uncomfortable or hugged them without asking. On Oct. 19, 2018, Radcliffe was leaving for the day and said goodbye to a registered practical nurse (RPN) in the unit. The RPN had a long weekend scheduled, so she said: "See you next Tuesday." Radcliffe repeated the phrase three times and then told her to "think about the first letter of ev- ery word." Another employee told the RPN not to answer, and she figured out that it spelled out the letters to an offensive term. The RPN was hurt as she thought she had a good relation- ship with Radcliffe and wondered if that was what he really thought of her. She also thought the word was disgusting. The next day, a registered nurse (RN) who heard the ex- change filed a complaint. She described what Radcliffe had said and added that "it has been happening for years" and "we have put up with it so long." She said that there were three other men in the unit and none of them talked like Radcliffe. The director of clinical opera- tions for the region conducted an investigation that involved interviewing seven employees in the unit along with Radcliffe. She herself had been subject to a com- ment from Radcliffe in the past that had made her uncomfortable and the other employees reported many incidents in which Radcliffe had made inappropriate com- ments or made them feel uncom- fortable. Radcliffe said he had only been trying to educate the RPN about the colloquial meaning of "see you next Tuesday." When asked about other incidents involving comments and hugging, Rad- cliffe said, "That's just who I am." He also said that some of his col- leagues had talked to him about his behaviour, but no one in man- agement had raised any concerns. Radcliffe added that since be- coming aware of the concerns of his colleagues, he had reviewed the AHS code of conduct and safe workplace policy. He said that he realized his conduct breached the policies and offered to apologize. On Nov. 7, AHS suspended Radcliffe for five days for breach- ing the code of conduct and policy by making "inappropri- ate comments of a sexual nature towards AHS staff " and making "inappropriate unwelcome phys- ical contact towards AHS staff." The union grieved the dismiss- al, arguing that the discipline was excessive. The arbitrator found that Rad- cliffe's conduct amounted to sex- ual harassment and took place in a highly professional workplace. In addition, it "involved a slang expression for one of the most ob- jectionable words in the English language" that Radcliffe repeated to a female colleague multiple times. The arbitrator also found that Radcliffe "over a considerable pe- riod of time, regularly engaged in sexually laden remarks and un- wanted hugging with coworkers" and made light of any requests to stop. Since AHS had an obligation to maintain a safe and appropriate workplace, it was justified in im- plementing significant discipline, said the arbitrator. The arbitrator noted that Radcliffe had a clean disciplin- ary record, but "the principle of progressive discipline does not require the lowest possible form of discipline to be imposed." As a result, the arbitrator determined that the five-day suspension was appropriate and dismissed the grievance. Reference: Alberta Health Service and UNA. D.P. Jones — arbitrator. Michael DeRosenroll for employer. Brady Holroyd for employee. Sept. 30, 2020. 2020 CarswellAlta 1803

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