Canadian Labour Reporter

May 17, 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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"mandatory generic drug substi- tution (unless the physician directs that a generic substitute is not allowed for a valid medical reasons)." The collective agreement also allows the city to "change the carrier of any benefit plan provided that it is at least equivalent to the present benefits provided in the collective agreement." In 2005, the city changed its benefits provider from Canada Life to Sun Life. The contract with Sun Life included a generic limit provision that stated any charges that were "in excess of the lowest priced equivalent generic product are not covered unless the doctor specifies in writing that no substitution for the prescribed drug may be made." The city covered brand-name prescription drugs when a physi- cian simply wrote "no substitu- tion" on the prescription. On Dec. 30, 2014, the city informed the union that it planned to change this practice and generic substitu- tion of drugs would be mandatory unless the physician specifically directed that a generic substi- tute was not allowed for valid medical reasons. However, the city continued to pay the full cost of brand-name drugs if the physi- cian only wrote "no substitution." Nearly two years later, the city once again expressed its inten- tion to change the practice, but it didn't follow through as it would require issuing a drug card to all employees for the purposes of direct billing. Another two years passed and in November 2018, the city sent a memorandum to all members of the bargaining unit that manda- tory generic substitution would be implemented for all prescribed drugs "unless your doctor directs that a generic drug substitution is not allowed for valid medical reasons" as of Jan. 1, 2019. If an employee's doctor made such a direction, they would have to complete a drug exemption applica- tion form and submit it to Sun Life. The union filed a grievance claiming that the city unilater- ally changed its longstanding practice of mandatory generic drug substitution and violated the collective agreement's right to physician authorization of brand-name drugs. It also argued that the change allowed the third- party insurer, not the physician, to decide if a generic substitution was appropriate. On Jan. 1, 2020, the city once again changed its benefits provider to Green Shield, which also required a drug exemption application form for brand-name prescription drugs. The arbitrator noted that the acceptance of a simple "no substi- tutions" note on an employee's prescription was accepted as valid medical reasons for 15 years and through multiple rounds of collective bargaining before the city first raised any concerns about it. The arbitrator found that the city's change essentially replaced "straight-forward, front-end physician approval for a generic drug exception" with "downstream review and the opportunity for rejection by a benefit provider" and agreed with the union that this transferred the decision on whether a generic drug substitu- tion would be permitted from the physician to the insurer. In addition, the drug exemp- tion application form required detailed medical information that hadn't been required previously and added cost to employees who had to pay for their doctor to complete the form. These changes were substantive and required discussion with the union, not unilateral implemen- tation, the arbitrator said. The arbitrator also found that the substantive change violated the collective agreement's require- ment that any change in insurance providers must be "at least equiva- lent to the present benefits." The grievance was allowed. Reference: Barrie (City) and Barrie Professional Fire Fighters Assn., IAFF, Local 1753. James Hayes — arbitrator. Stephanie Jeronimo for employer. Mark Wright, Ella Bedard for employee. Jan. 5, 2021. 147 C.L.A.S. 109 stealing cleaning products. The university put a hidden camera in the custodians' cubby closet, where supplies were kept. On Jan. 17, 2019, the camera recorded Jumalon bringing a lunch bag into the cubby, placing it on a shelf out of view, and appearing to place something into the bag. The camera was adjusted for a better view and, four days later, Jumalon was recorded taking five cleaning cloths from the shelf and putting them in his lunch bag. A third recording from Feb. 6 showed Jumalon folding another five cleaning cloths and putting them into his lunch bag. The camera didn't catch Jumalon bringing the lunch bag into the cubby on any other occasion over a one-month period. Management held an investiga- tion meeting, although Jumalon wasn't told why. They told Jumalon that they had received a tip about misconduct at the library and Jumalon didn't seem to know to what they were referring. Management asked again and Jumalon still said there was nothing else. They told him about the phone call and asked if he had taken any cleaning supplies. Jumalon denied doing so or bringing any personal items such as his lunch bag into the cubby. Management showed him photos taken from the surveillance footage and he initially said he didn't remember the incidents. He then said he sometimes used the cloths to wipe his car's windshield and mirrors in the winter. He apolo- gized "from the bottom of my heart" and said he wouldn't do it again. Management determined that Jumalon hadn't been honest and forthright in answering their questions and his apology after being shown the pictures was a confession. Jumalon sent a letter to management on March 1 apol- ogizing for his "terrible mistake" and promising that he wouldn't do it again, but the university terminated his employment three days later. The union grieved the termination as excessive and contrary to the progressive disci- pline set out in the collective agreement. The arbitrator found that the university had proof of misconduct with the surveillance video. The fact that Jumalon brought his lunch bag into the cubby showed that the misconduct was pre-meditated and he knew it was wrong, said the arbi- trator, adding that it was "a funda- mental common-sense principle" that employee theft was wrong and could lead to termination, regard- less of any workplace policies. However, the arbitrator noted that the cloths were worth about $0.50 each, bringing the total value of the theft on the two recorded incidents to $5. Jumalon's eight years of discipline-free service and his expressions of remorse were significant mitigating factors, the arbitrator said. The arbitrator also found that management didn't make direct allegations in the early part of the investigative interview, when they considered Jumalon to be dishonest and evasive. Jumalon had no idea what the meeting was about and there may have been a language barrier that affected his answers. The arbitrator determined that Jumalon's misconduct was serious but the employment relationship wasn't irreparably damaged. The university was ordered to reinstate with a six-month suspension. Reference: University of Saskatchewan and CUPE, Local 1975. Daniel Ish — arbitrator. Kit McGuinness, Stephanie Nemeth for employer. Ann Iwanchuk, Leanne Ooms for employee. Dec. 15, 2020. 2020 CarswellSask 632 Theft serious but worker apologetic; no prior discipline Unilateral change shifted decision on brand-name drugs

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