Canadian Labour Reporter

November 15, 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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mill's employees, so it included a provision that the Flavelle mill would "make reasonable best ef- forts" to accommodate any em- ployees who wanted to leave be- fore the closure date in order to work elsewhere, as long as there was a qualified replacement avail- able and the employee provided at least one week's notice. Ac- commodation granted to work elsewhere before the mill closed would not affect employees' sev- erance entitlement under the clo- sure agreement. Four of the mill's employees se- cured alternate employment be- fore the Oct. 31 closing date. They each requested accommodation under the alternate employment provision, providing at least one week's notice and a qualified re- placement. Flavelle approved their re- quests and paid each of the four employees severance pay and their unused vacation credits. However, it didn't pay them any- thing in lieu of the remaining no- tice period until the closing date, taking the position that they had resigned from their employ- ment. The union filed a grievance on behalf of the four workers, claiming that they were entitled to pay in lieu of notice under the B.C. Employment Standards Act (ESA) — which required no- tice of group terminations of 50 or more employees within any two-month period of at least eight weeks. The ESA stipulated that the termination pay re- quirements applied "whether or not the employee has obtained other employment or has in any other way realized or recovered any money for the notice pe- riod." The union argued that the four employees did not resign from the employment at the mill. When Flavelle granted the accommoda- tion requests and allowed them to leave before the closing date, it effectively shortened the period of notice that the company had given to less than the eight weeks statutory minimum. The closure agreement could not contract out of the statutory minimum, so the employees were entitled to notice up to the mill closing date, said the union. Flavelle countered that it pro- vided eight weeks' notice as re- quired under the ESA and the four employees were no longer entitled to termination pay be- cause they quit. The arbitrator found that Fla- velle complied with its obliga- tions under the ESA by providing eight weeks' written notice for the group termination. The four employees demonstrated a sub- jective intention to quit their em- ployment before the closing date and the company had no obliga- tion to provide any pay in lieu of notice after they quit, the arbitra- tor said. The arbitrator also found that the discretion Flavelle held to grant accommodations was part of a reciprocity agreement where employees received ben- efits including the ability to find replacement work without jeop- ardizing entitlements under the closure agreement, while Flavelle could operate without "an exodus" of employees. How- ever, if an employee simply left or sought accommodation to leave for another job, the requi- site elements of a quit were pres- ent. Each of the four employees "formed the requisite subjective intention to leave the mill," the arbitrator said. "The fact the employer held full discretion under the closure agreement to grant 'accommo- dation requests' from employees seeking to leave early, does not negate or otherwise diminish the existence of the essential subjec- tive intention and objective mani- festation of a quit triggered by the employee's request," said the arbi- trator. The arbitrator determined that Flavelle acted properly under the ESA and the employees quit their employment, disentitling them to the full notice period. Reference: Flavelle Sawmill and USW, Local 2009. Christopher Sullivan — arbitrator. Marylee Davies for employer. Carmela Allevato for employee. Aug. 10, 2021. 2021 CarswellBC 2693 was extended an extra month to Jan. 16, 2018, and the professor also agreed that he would teach six extra hours in that final week. On Jan. 11, the dean met with three students about an unrelated matter. The dean asked the stu- dents how their other courses had gone and they mentioned that the MKT-100 course had been "light." The dean asked if they had made up hours and they replied, "not really." Additional questioning re- vealed that a half-hour had been added to the beginning of some classes, but it had been inconsis- tent. The dean learned that the professor had told the students that he would be adding 30 min- utes to their classes but that only lasted for a few weeks. He also didn't communicate the plan for the extra hours in January. The communications were confus- ing to some students, leading to some showing up at different times. The college interviewed the professor on April 12 and he said that he thought he had told the students to stay in class later than the scheduled end time. He ac- knowledged that he didn't share his plan with the college and de- cided unilaterally to extend the class times. The professor also said that he "delivered the lectures that I felt I could fit in" and followed the re- vised course outline. However, he also said that he didn't think that he had the full week at the end of the semester to deliver the extra hours. The college determined that the professor didn't teach all of the additional hours that he was assigned — including some for which he was paid overtime — and that he was misleading about it. It also felt that his denial of wrongdoing broke the trust nec- essary to do his job. It considered the previous discipline on his record and terminated him for cause. The union filed an unjust dismissal grievance. The arbitration board found that the professor had an obliga- tion to inform his students about the extra hours but he didn't properly communicate it. The board concluded that the profes- sor had "no intention of deliver- ing six extra hours of class time" during the last week. The board also found that his account of how he communicated with the students and carried out the plan was inconsistent. In ad- dition, he was evasive in the in- terview and he didn't provide any documentation of adjustments for the additional teaching hours he had agreed to. The board determined that the professor betrayed the col- lege's trust, as it expected that he would perform his job in com- pliance with the plan to which he agreed. That trust was fur- ther damaged when he failed to acknowledge any wrongdoing. With the "high degree of profes- sional integrity" expected of col- lege professors, the board found that the college had just cause to terminate the professor's em- ployment. Reference: OPSEU and Canadore College. Christine Schmidt — chair. Wallace Kenny for employer. Caroline Jones, Glynnis Hawe, Lorie Clement for employee. Sept. 28, 2021. 2021 CarswellOnt 13399 Educator didn't do extra teaching hours despite getting paid Agreement allowed workers to leave early for other jobs < Professor pg. 1 < Quitting pg. 1 November 15, 2021 8 Canadian HR Reporter, a Key Media Canada (HR) Ltd. business 2021

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