Canadian Labour Reporter

April 5, 2021

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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who went on maternity leave and were eligible for employment insurance (EI) benefits with a top-up of their EI payments that would bring them up to 95 per cent of their regular salary for 17 weeks. This involved payment of 95 per cent of the employee's salary during the two-week wait- ing period for EI benefits fol- lowed by payments equal to the difference of 95 per cent of the employee's salary and "the gross employment insurance benefit for an additional 15 weeks." In February 2018, a staff law- yer with LAS at its Prince Albert, Sask., office went on maternity leave. She had been with LAS for 12 years and — in addition to her full-time role with LAS — she was an elected city councillor. She would continue to receive her city councillor salary while on maternity leave, so she asked about her eligibility for top-up payments since she had outside income. The lawyer's EI benefit rate would have been $547 per week based on her LAS salary but her city councillor salary reduced her EI payments to $40 per week. LAS paid her top-up based on the amount of EI payments she would have received based only on her LAS salary, before it was reduced due to her city council- lor income. The union filed a grievance, arguing that the collective agree- ment's wording entitled the em- ployee to a top-up based on the amount she actually received from EI. The union pointed out that the plain language of the collective agreement stated that the lawyer was entitled to a "supplementary payment from the employer based on her gross payment from EI, not the pay- ment she would have received from EI if not for her income as a city councillor. As a result, the top-up payment should cover the difference between the $40-per- week EI payment she actually received — her gross EI benefits payment — and 95 per cent of her weekly salary, said the union. The employer argued that for the purposes of the collective agreement, "the gross EI benefit" meant "prior to any deductions from benefits" including earned income. The arbitrator noted that "gross" wasn't defined elsewhere in the collective agreement, nor was "gross EI benefit" defined in the Employment Insurance Act or the federal government's on- line resources for EI. Absent any definition, the arbitrator relied on the meaning that it referred to an amount of money prior to any deductions or losses — meaning that the lawyer's gross EI benefit was the amount she received be- fore her city councillor earnings were deducted, or $547. The $40 she received from EI after the de- duction from her other earnings was her net EI benefit, said the arbitrator. The arbitrator also found that the employer's position was backed up by the fact that an- other provision in the collective agreement for compassionate care leave provided a top-up of the difference between "pay- ments received by the employee from employment insurance" and the employee's regular sal- ary. This more specific language indicated the intent of the par- ties and what "gross EI benefit" meant, the arbitrator said. The arbitrator determined that the maternity leave top-up in the collective agreement en- titled the lawyer to receive pay- ments from LAS equal to the different between her EI benefits entitlement of $547 based only on her LAS salary, before the benefit was deducted to account for her outside earnings. The grievance was dismissed. Reference: Legal Aid Saskatchewan and CUPE, Local 1949. Allen Ponak — arbitrator. Amy Gibson for employer. Jake Zuk for union. Feb. 16, 2021. 2021 CarswellSask 89 CPR had a mobile communica- tion policy that prohibited un- authorized personal use of MiFi devices. Miller went on a vacation to Cuba with his family in January 2020. The following month, CPR received a $30,000 data usage bill on its company cellphone ac- count. CPR traced the bill to Mill- er's MiFi device, which had used more than 30 GB of international data and 150 GB of domestic data during the January billing period — about 36 times more than the average monthly employee usage of 5 GB. When CPR brought the bill to Miller's attention, he acknowl- edged that he had taken the de- vice on vacation. He explained that before the vacation, he had connected two tablet comput- ers at home to his MiFi one night when the power and Internet were out. He said his two young daughters were scared, so he used the MiFi to logon to the Internet so they could watch a movie that would help calm them down. When the power came back on, the tablets reconnected to his house's wireless and he later went to work with his MiFi device. However, he suggested that when he brought his MiFi device and the tablets on vacation, the tablets "must have latched onto my electronic devices" because the hotel had a weaker wireless signal. Miller acknowledged that his actions violated the mobile device policy, saying that he "owned this whole thing and I am willing to pay." CPR said it had negotiated the amount down to $15,000 and Miller asked: "Who do I write the cheque to?" On March 29, CPR suspended Miller for 20 days without pay for violating the mobile com- munication policy and mobile communications procedures. It also advised Miller that he was responsible for "the full payment of the mobility overcharges that you incurred," which it indicated was to be decided due to ongoing negotiations with the service pro- vider. It was eventually able to ne- gotiate the amount down to $750. The union grieved the dis- missal, arguing that the suspen- sion was excessive for intentional misconduct by an employee who had a long record of service with no discipline for 24 years. A federal arbitrator found that Miller's explanation of the data charges wasn't credible. Since the MiFi device's batter- ies had to be recharged after six hours, Miller would have had to recharge it while he was in Cuba to rack up more than 180 GB of data, given that only 1 GB provided two hours of video streaming or 12 hours of Internet browsing. The arbitrator noted that it was possible that Miller had in- advertently taken the MiFi device with him to Cuba, but once there he was aware — or reasonably should have been aware — that it was being used, given the period of time during which it was used and how much data it down- loaded. Miller was culpable and responsible for the misappropria- tion of CPR's MiFi for his personal use, said the arbitrator in uphold- ing the suspension. Reference: Canadian Pacific Railway and IBEW. Richard Hornung — arbitrator. Denis Ellickson for employee. Feb. 18, 2021. 2021 CarswellNat 394 Twenty-day suspension for $30,000 cellphone bill Agreement's intention was to augment pay disparity

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