Canadian Labour Reporter

November 9, 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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up to a failure to properly protect the health and safety of nurses under the Ontario Occupational Health and Safety Act (OHSA) and the collective agreement, said the ONA. The collective agreement re- quires LTC homes to "inform em- ployees of any situation relating to their work which may endanger their health and safety, as soon as it learns of the said situation," pro- vide proper safety training, and ensure the proper measures under the OHSA are carried out in the workplace. The arbitrator noted that man- agement has the right to run oper- ations as they see fit, as long as they comply with collective agreement and statutory obligations and pro- tect the health and safety of em- ployees and residents. The arbitrator also noted that during the hearing process, the LTC homes agreed to use "their best efforts to obtain PPE," main- tain physical distancing protocols in the homes, and ensure proper safety training is provided as soon as possible. The homes also agreed to advise staff of residents who test positive for COVID-19, advise the joint health and safety committees of the availability of PPE, and com- municate any hazards it discovers to employees. Sanitization pro- cesses such as enhanced cleaning and disinfection of common areas and provision of hand hygiene agents would also be consistently followed. The arbitrator found it was nec- essary to make orders to provide direction and to help resolve dis- putes. The orders "are not made based on any finding of fault," said the arbitrator, but rather "in order to further peaceful labour rela- tions and to provide for the health and safety of employees, pursu- ant to the collective agreements, OHSA, and [provincial] direc- tives." The arbitrator ordered: • the LTC homes to provide nurses with access to "fitted N95 respirators, equivalent or great- er protection and other appro- priate PPE (appropriate gowns, gloves and face shields) when assessed by a nurse at point of care to be appropriate and re- quired." • nurses to perform a "point of care risk assessment" before all of their interactions with resi- dents in a home, to determine what PPE was necessary. • both the LTC homes and nurses to "engage in the conservation and stewardship of PPE." • all LTC home staff to wear N95 masks whenever medical proce- dures that could generate aero- sols are performed. • the LTC homes to provide "a sufficient supply of all ap- propriate sizes of fit-tested N95s" for nurses along with pursuing "all proper avenues to procure sufficient supply of all PPE." • that there be no intimidation, threatening, or coercion of nurs- es who exercise their right to ac- cess PPE. • the LTC homes to "implement administrative controls such as isolating and cohorting of resi- dents and staff." • the LTC homes to "make all reasonable efforts to cohort staff between suspected or con- firmed COVID-19 residents and residents who have not been in- fected." Reference: Participating Nursing Homes and ONA. John Stout — arbitrator. John Bruce, Ian Dick, Mitchell Smith, Bob Bass, Mary-Claire Bass for employer. Philip Abbink, Janet Barowy, Danielle Bisnar, Sharan Basran, Beverly Mathers, Pat Carr, Nicole Butt for union. May 4, 2020. 2020 CarswellOnt 15022 Arbitrator's orders came after ONA raised safety concerns Attendants couldn't work without requalification accordance with the Canada La- bour Code. Rouge couldn't coerce anyone to end their leave early or attend training while on leave, but flight attendants had the discretion to voluntarily end their leave early to attend requalification training. In mid-2015, three flight at- tendants — Sarah Drouin, Amelie Perreault, and Julie Demontigny — took maternity and parental leave. Drouin and Perreault were sched- uled to return on July 10 and con- tacted Rouge a month earlier about training, but Rouge informed them that training wasn't available until Aug. 8. They each used one week's vacation and went without pay for three weeks until the training started. Demontigny anticipated return- ing to work on June 12, so she con- tacted Rouge in mid-May about her requalification training. However, she was told no training was avail- able until July 5 — although Rouge didn't mention training that was being conducted before her return date. Demontigny used vacation credits and then went without pay for two weeks until the training be- gan. A fourth flight attendant, Emily McKenzie, planned to return from maternity leave in March 2017. Shortly before then, she was told there was a shortage of trainers and it could take months before she could receive requalification training. She agreed to take initial technical training (ITT) intend- ed for new flight attendants, for which the airline would pay half of her regular wage. McKenzie used two weeks of vacation followed by three weeks without pay before starting the ITT. The union filed a grievance claiming Rouge violated the collec- tive agreement, the Canada Labour Code, and the Canadian Human Rights Act (CHRA) by failing to provide the flight attendants with the training they needed to return to their positions after their leave. The arbitrator noted that the collective agreement didn't require Rouge to immediately retrain flight attendants after their qualifications lapsed, so it didn't appear to violate the collective agreement. However, both the legislation "set a floor with respect to human rights" that can't be contracted out of, the arbitrator added. The arbitrator found that the flight attendants experienced an adverse impact because they took maternity and parental leave — which was connected to their sex — but being qualified for flight du- ties was a reasonable requirement for the job. The issue was whether Rouge could reasonably accommo- date the flight attendants. The arbitrator found that it would be too much to retrain all flight attendants returning from leave immediately, so accommoda- tion would involve training within a reasonable period of time — which could mean one-on-one training if the wait was for an extended pe- riod. There was no obligation to pay unqualified flight attendants returning from leave because "re- quiring work in return for compen- sation is a reasonable and bona fide requirement," said the arbitrator. The arbitrator found that Rouge failed to accommodate the four flight attendants. Drouin and Perreault contacted Rouge a month before their return, so making them wait two months af- ter that was unreasonable. As for Demontigny, Rouge should have informed her about an option of returning a few days early for training available then, the arbi- trator said. The arbitrator also found that although Rouge accommodated McKenzie with the ITT, she still suffered a loss of income because Rouge didn't try to get her back to full status within a reasonable amount of time. The airline was ordered to make its "best efforts to address each in- dividual case and accommodate flight attendants returning from maternity and parental leave to the point of undue hardship." Reference: CUPE and Air Canada Rouge. John Stout — arbitrator. Gillian Round for employer. Aug. 5, 2020. 2020 CarswellNat 3215

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