Canadian Labour Reporter

June 7, 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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own. This student wore an identi- fication bracelet and the teacher's supply binder had a safety plan for the student from the previous year. However, no one updated the plan with new contacts for the current year, discussed it with the worker, or indicated that the student was still a risk to leave school property. Her teaching partner only told her that the student should be placed at the front or the back of the line during transitions. On Sept. 14, 2016 — the work- er's second week at the school — her teaching partner was off sick and an occasional teacher (OT) was brought in. At the end of the lunch recess, the worker, the OT and an educational assistant lined up the children and took atten- dance before going back into the classroom. The student in ques- tion was put at the back of the line and the OT situated herself near the student, with the educational assistant and her special-needs student behind them. The worker counted the students after they entered the classroom and realized that the student in question was missing. Another student said that "he ran," so she ran outside. She found the student with two women at a crosswalk and returned him to the school. The worker deduced that the student must have left the line before he entered the classroom while she was facing the door counting students. The worker was suspended without pay for one day for failing to adequately supervise the student and failing to inform the OT that the student was a flight risk. She suggested several changes including assigning the student to a class without an exterior door, installing an alarm on the door, and using walkie- talkies — the latter was part of the previous year's safety plan but hadn't been provided. She also said she had become more observant. The teachers' union grieved the worker's suspension, arguing that the school board's failure to update the safety plan or discuss the student with the worker were significant contributing factors to the incident. The arbitrator noted that "maintaining proper supervision of kindergarten-age children is a fundamental element of the DECE's (and the teacher's) role." However, it had been established in previous arbitration deci- sions that "not every employee mistake, failure or misadventure deserves or requires a disci- plinary response." The arbitrator agreed that the worker hadn't been formally updated on the safety plan, but based on what she already knew, she should have realized he was a risk and required more supervi- sion. She did follow the practice of placing the student at the back of the line under the supervision of the OT and once the worker real- ized that the student was missing, she took immediate action, the arbitrator said. The arbitrator also found that the worker shouldn't be held accountable for not prop- erly informing the OT about the student's risk, since the adminis- tration didn't do so for herself. In addition, she took it upon herself to be extra vigilant and made suggestions for improvements afterwards, demonstrating that she learned from the experience, said the arbitrator. "Taking responsibility for something need not be synony- mous with taking the blame, and in this case I find that the [worker] has done so in the more impor- tant sense of the word," the arbi- trator said in ordering the school board to rescind the suspension. Reference: Halton District School Board and ETFO. Eli Gedalof — arbitrator. John-Paul Alexandrowicz for employer. Heather Ann McConnell for employee. May 12, 2021. 2021 CarswellOnt 6775 hours increased to a limited level, a second wave in the fall led to another lockdown. The hotel's occupancy and average daily room rates dropped, the event hosting service was limited, and the restaurant could only do take- out service. The hotel continued to operate, but at a much smaller scale than normal. The company decided to lay off junior employees due to a substantial reduction in the work available, while senior employees remained employed. Certain posi- tions saw a drop in available work to nothing, in which cases any senior employees were reassigned. Laid-off employees were able to access government benefits such as the Canada Emergency Response Benefit (CERB). The company did not provide any severance pay to the laid- off employees, as the B.C. Employment Standards Act (ESA) has an exception to that obligation for employees who are "employed under an employ- ment contract that is impossible to perform due to an unforesee- able event or circumstance other than receivership, action under section 427 of the Bank Act (Canada) or a proceeding under an insolvency Act." The union filed a grievance against the layoffs. It acknowl- edged that the pandemic restric- tions were an unforeseeable event or circumstance but it argued that the employment contract of each terminated employee wasn't impossible to perform. The union pointed to the fact that the hotel continued to operate with reduced staffing in all departments, which was tied to a downturn in business. In addition, the business wasn't closed by public health restric- tions. While there was less work happening, it was still being done by some employees and therefore wasn't impossible to perform, the union said. The arbitrator noted that the exception to the severance pay requirement under the ESA required two elements — it must be impossible to perform the employment contract and it must be because of an unforeseeable event or circumstance. There was no doubt that the pandemic met the definition of the latter, so the issue was the ability to perform the employment contract of the laid- off workers, said the arbitrator. The arbitrator referred to past jurisprudence that estab- lished that the ESA termination and severance pay provisions are meant to protect employees from the economic impact of termina- tion, so they should be interpreted as much as possible to protect employees. The arbitrator found that, although an essential feature of an employment contract is the exchange of work for wages and a layoff can be due to a shortage of work, such a layoff doesn't mean an employment contract is impossible to perform. In this case, the company continued to employ people in its opera- tions during the pandemic and its restrictions, meaning the employ- ment contracts were possible to perform and the ESA exception to severance pay didn't apply. "In the present case, a series of regulatory constraints collapsed demand for the employer's offerings. Those events led to a shortage of available work," said the arbitrator in dismissing the grievance. "Nonetheless, the employer retained its capacity to employ persons in the continued operation of its business." Reference: Burnaby Crescent and UNITE-HERE, Local 40. Ken Saunders — arbitrator. Keith Murray for employer. Suzanna Allevato-Quail for employee. May 12, 2021. 2020 CarswellBC 1493 Less business didn't make employment 'impossible' Actions performed showed responsibility: arbitrator

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