Canadian Labour Reporter

August 16, 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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stipulated "where an employee is called in to work less than two hours prior to the commence- ment of the shift and arrives within one hour of the com- mencement, she will be paid for a full shift provided that she works until the normal completion of the shift." On Jan. 17, 2020, a worker's manager texted her to see if she was available to work that day. The shift to be covered ran from 8:30 a.m. to 4:30 p.m., but the text didn't come until 8:42 a.m. The worker accepted and arrived at 9:30 a.m., one hour after the start of the shift. She worked until the end of the shift at 4:30 p.m. The LHIN paid the worker 6.5 hours at her regular rate of pay for working the shift, accounting for a 30-minute unpaid break. ONA filed a grievance, claiming that the worker was entitled to 7.5 hours of pay under the collective agreement. ONA argued that the col- lective agreement required the LHIN to pay the worker for a full shift, as calling someone in af- ter the start of a shift counted as less than two hours prior to the start of the shift. However, the LHIN disagreed, countering that the collective agreement only re- quired payment for a full shift if the worker was called before the shift — the conditions for such payment were a call less than two hours before the shift and the worker had to show up within one hour of the start of the shift. The worker was called and started work after the start of the shift, so the collective agreement article in question didn't apply, said the LHIN. The arbitrator found that the purpose of the article was to compensate a worker for inter- rupting whatever they were do- ing and report for work on short notice. In addition, the article in question was part of a sec- tion providing for premium pay and allowances, so the purpose was to provide a benefit to both sides — the LHIN got coverage of a shift on short notice and the worker got compensation for the inconvenience of attending at work on short notice. The arbitrator also found that the article established the time period for the worker to be eli- gible for the full-shift allowance. The words "two hours prior to the commencement of the shift" indicated when the time period started and the condition that the employee arrive within one hour of the start of the shift was the end of the period. There was no language that ended the pe- riod of qualifying call-ins at the commencement of the shift, said the arbitrator, adding that such an interpretation would require additional words so the article would state: "called in to work less than two hours prior to the com- mencement of the shift but not after the commencement of the shift itself." "The parties have in effect agreed that the disruption of be- ing called in less than two hours before the commencement of the shift is deserving of the additional allowance while the disruption of being called in more than two hours before the commence- ment of the shift is not," said the arbitrator in ruling that the LHIN breached the collective agree- ment and should pay the worker for the full shift. Reference: ONA and North West Local Health Integration Network. Ian Anderson — arbitrator. Maria Ascenzi for employer. Alison Dover for employee. June 28, 2021. 2021 CarswellOnt 9670 verbal harassment, or physical assault in the workplace would re- sult in his dismissal. On Feb. 12, 2015, the worker was overhauling a subway car's undercarriage with a coworker. The coworker asked the worker which bolts were new and the worker turned away, appearing to be frustrated. The coworker told him to "Relax and be happy, smile, just be happy" and the worker re- sponded by throwing two of the bolts at him. The bolts were about four inches long and one inch thick, and one of them hit the in- side of the coworker's knee, leav- ing a small red mark. The coworker reported the in- cident as he didn't feel safe work- ing with the employee. He stated that the worker threw the bolts overhand from four or five feet away — not as hard as he could but "a hard toss." The worker called him later and apologized, saying he didn't intend to hurt him. In an interview with manage- ment, the worker admitted to throwing the bolts but denied aim- ing for or hitting his coworker. He also said he was feeling terrible that day after not getting much sleep. The next day, the worker provided a written statement say- ing that he tossed the bolts on top of a piece of machinery because he had to go to the bathroom but his coworker stormed off. He said "there was no intent to throw it at him or in his direction." The TTC determined that the worker breached his last-chance agreement and terminated his employment. The union grieved, arguing that the incident wasn't serious enough to trigger the last- chance agreement. It also pointed out that his phone call apology showed he was remorseful. The arbitrator found that un- der the last-chance agreement, the worker agreed to not become involved in any incidents of inap- propriate misconduct or engage in verbal harassment or physical assault. In addition, the TTC's workplace violence policy and the Ontario Occupational Health and Safety Act both defined work- place violence as "the exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical in- jury to the worker." The arbitrator also found that the coworker was a credible wit- ness who was consistent in his re- port of the incident — he showed the red mark on his knee to man- agement — and had no reason to lie about it. In contrast, the work- er changed his story, first admit- ting to throwing and hitting the worker and later saying he didn't do either. The arbitrator determined that the worker threw the bolts at this coworker without provocation — the comment about smiling could be considered a "low-level form of teasing," but the worker's reaction was "wildly disproportionate." It was also a "purposeful assault" that could have caused injury, the arbitrator said. "At worst, it was workplace vio- lence; at best, it was inappropri- ate, disrespectful conduct," said the arbitrator in upholding the dismissal. "Either way, it was a violation of the last-chance agree- ment." Reference: Toronto Transit Commission and ATU, Local 113. Lorne Slotnick — arbitrator. Giuseppe Agostino for employer. Simon Blackstone, Saneliso Moyo for employee. July 15, 2021. 2021 CarswellOnt 10459 Bad behaviour without provocation banned: arbitrator Right doesn't end when work commences: arbitrator < Bolts pg. 1 < Call-in pg. 1 August 16, 2021 8 Canadian HR Reporter, a Key Media Canada (HR) Ltd. business 2021

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