Canadian Labour Reporter

November 22, 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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bargaining unit position for a pe- riod in excess of the probationary period [480 hours] shall become a bargaining unit employee with full rights and benefits of the col- lective agreement while tempo- rarily filling the position." Once the temporary assignment end- ed, the employee's status would revert back to casual and they would no longer be a union mem- ber. Falkenham was certified as a licensed practical nurse (LPN) in February 2020. Queen's Manor was legally re- quired to have registered nurse (RN) coverage 24 hours a day. Sometimes it had trouble find- ing and keeping RNs, so it would fill gaps by temporarily hiring an LPN. In September 2020, Queen's Manor had to hire two temporary full-time LPNs to cover RN gaps. The first RN advised that she would be taking maternity leave in late November, so the facility posted another temporary LPN position. That posting specified that it would be temporary until an RN was hired and that it was to cover maternity leave ending around December 2021, "depen- dent on the hiring of a registered nurse as above." Falkenham successfully ap- plied for the temporary LPN posi- tion covering the maternity leave. The offer letter advised that she would "revert to your former po- sition approximately December 2021 or when a Registered Nurse is hired." It also stated that she would be a member of the bar- gaining unit for the duration of the temporary position, reverting to her casual status when com- pleted. On Jan. 12, 2021, Queen's Manor informed Falkenham that it had hired an RN effective Feb. 22 and she would be reverting to casual status on that date. Falken- ham asked if she could exercise bumping rights under a collective agreement provision that stated "employees affected by layoff may use their seniority to bump into other bargaining unit positions for which they may be qualified for." She wanted to bump the sec- ond LPN who was behind her in seniority because Falkenham had arrived at the home first on the day that they both started. Queen's Manor refused, saying that she was no longer a member of the union and, as a casual work- er, could not use the collective agreement's bumping provision. The union grieved, arguing that the collective agreement was ap- plicable because Falkenham was still in the bargaining unit posi- tion when she was notified. The arbitrator noted that the collective agreement made it clear that the status of being a bar- gaining unit member only lasted for a casual worker while filling the bargaining unit position, so that status was itself temporary. The arbitrator found that Falken- ham's LPN position ended on Feb. 22, 2021, as did her access to rights and benefits under the col- lective agreement. The arbitrator also found that the bumping provision applied to employees who were laid off. The agreement didn't define "layoff," but the ordinary mean- ing was "a cessation of employ- ment that is brought about not by a termination for cause, but rather because the work being performed by the employee is no longer necessary." In this case, Falkenham's em- ployment was neither terminated for cause nor due to a reduction in the work to be performed. In- stead, her position as a temporary full-time LPN "came to a natural and agreed-upon end when it was replaced, pursuant to its terms, by a permanent RN." This was not a layoff, the arbitrator said in dis- missing the grievance. Reference: CUPE, Local 2648 and Queens Home for Special Care Society (Queen's Manor). Augustus Richardson — arbitrator. Janet McIntosh for employer. Aug. 26, 2021. 2021 CarswellNS 590 and to be aware of his language when speaking to students. On April 8, 2020, CBE issued a letter of reprimand to the worker for making derogatory comments about Indigenous people while coaching a student on the impor- tance of attending class on time. He told the student "You are unreliable and untrustworthy like a First Nations person" and that the student would do the minimum work "like a lazy Ab- original person." The worker said he used his own experience from construction work to motivate and insisted that the comments weren't racist and "they are not all like that." The letter of reprimand stated that regardless of his intent, his comments were "inappropriate, unprofessional, and perceived to be racist." He was warned that his role as an educator was to model good behaviour and he should avoid using stereotypes. On June 12, the worker told a colleague that a student who had been selected to make school an- nouncements was "just an arro- gant person of colour." This stu- dent had challenged the worker's German culture as racist and the worker felt that the student wasn't a positive reflection of the school because of his conduct. CBE in- vestigated and the worker said that he "stereotypes at times due to his German upbringing" and he used the word "colour" after remembering his previous disci- pline and thinking it was fine. CBE suspended the worker for five days and ordered him to enroll in a course about diversity and inclusion and unconscious bias. The suspension was with pay, as required under the Alberta Education Act. The worker felt the five-day suspension was "large and heavy- handed," particularly since he made the "colour" comment to a colleague and not a student. He filed a complaint seeking to re- scind the suspension. The arbitration board accepted that CBE was entitled to impose disciplinary suspensions as a way of progressively disciplin- ing teachers under the Alberta Education Act, noting that the concept of progressive discipline provided teachers with the op- portunity to change their behav- iour before termination. The arbitration board found that expectations for the worker were made clear through the code of conduct, the TQS, and his No- vember 2019 letter of expectation before he received any discipline, and it was incumbent on him to educate himself on appropriate behaviour that fostered a safe en- vironment that was free from rac- ism. In addition, malicious intent was not necessary for a comment to be considered racist and dam- aging, said the board. The board agreed that, given his prior discipline and the seri- ousness of the misconduct, a sus- pension was warranted. However, "the jump from a letter of repri- mand to a five-day suspension ap- pears… to be particularly steep," and lost an element of progres- siveness, the board said. The board determined that a three-day suspension was a more reasonable step and would still send a strong message about the seriousness of the misconduct. It set aside the five-day suspen- sion and substituted three days instead. Reference: Rast and Calgary Board of Education. Cheryl Yingst Bartel — arbitrator. Michael Ford for employer. Karen Tereposky for employee. Aug. 6, 2021. 2021 CarswellAlta 2004 Teacher's comments not malicious, but he had prior warnings Worker reached 'agreed-upon end' of bargaining-unit position < Racist pg. 1 < Bumping pg. 1 November 22, 2021 8 Canadian HR Reporter, a Key Media Canada (HR) Ltd. business 2021

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